Cody v. Hovey

• Decision Date: 09 April 1941
• Docket Number: 306.
• Parties: CODY v. HOVEY.
• Court: North Carolina Supreme Court

14 S.E.2d 30

219 N.C. 369

CODY v. HOVEY.

No. 306.

Supreme Court of North Carolina

April 9, 1941

This was an action upon a judgment rendered in the State of New York. The case was here at fall term, 1939, reported in 216 N.C. 391, 5 S.E.2d 165, and again at spring term, 1940 reported in 217 N.C., 407, 8 S. E.2d 479. On the first appeal the court considered plaintiff's demurrer to the answer wherein it was attempted to set up as an affirmative defense that the transaction upon which the New York judgment was founded was a gambling contract prohibited by C.S. § 2144. It was held that the answer did not set up sufficient facts to constitute a valid defense on that ground. The demurrer was sustained, with right to defendant to move for leave to amend in accordance with the statute. Other matters pertaining to the pleadings, not now pertinent, were disposed of by the opinion on that appeal. The second appeal was from the denial, as a matter of law, of the motion to amend, on the ground that the motion had not been made in time. It was held here that the Superior Court had power to entertain the motion, and that the refusal to do so as a matter of law was error.

Thereafter motion was made before the clerk for leave to file an amendment to the answer. The motion was allowed by the clerk and the plaintiff excepted and appealed to the judge. The matter finally came on for hearing at the November term of the Superior Court of the county before Judge Phillips who after hearing the arguments of counsel for plaintiff and defendant, and being of opinion that it would not be in the furtherance of justice to allow the proposed amendment, in his discretion, denied the defendant's motion for leave to file the amendment. The defendant having admitted all the allegations of the complaint, and the demurrer to his affirmative defense having been sustained, the court thereupon rendered judgment on the pleadings for the amount alleged in the complaint. The defendant appealed.

Pritchett & Strickland, of Lenoir, for appellant.

Gover & Covington and Hugh L. Lobdell, all of Charlotte, for appellee.

DEVIN Justice.

This case comes to us upon appeal by defendant from an order of the court below denying his motion for leave to file amendment to his answer, and from judgment on the pleadings for plaintiff.

It was admitted in the pleadings that in an action duly constituted in the Supreme Court of the State of New York, a court of general jurisdiction, wherein Francis A. Cody was plaintiff and Herman W. Booth and George I. Hovey were defendants judgment was rendered that plaintiff recover of defendant the sum of money alleged. It was also admitted that defendant Hovey was duly served with process in that case, and that he answered, appeared and defended on the merits; that the trial resulted in verdict and judgment for plaintiff; that defendant appealed to the Appellate Division of the Supreme Court of New York, and that the judgment of the trial court was affirmed, April, 1928. No part of the judgment has been paid. The case is reported, without opinion, in 254 A.D. 659, 4 N.Y.S.2d 187, under the title of Francis A. Cody v. Herman W. Booth, defendant, impleaded with George I. Hovey, appellant.

The defendant having admitted all the allegations of the complaint, and relying solely upon the affirmative defense set up in his answer, when the demurrer to that defense in the answer was sustained, the defendant was left defenseless, and, nothing else appearing, the plaintiff was entitled to judgment on the pleadings. Therefore, the defendant seeks to have us reverse the ruling of the court below denying his motion for leave to file the amendment to his answer.

The denial of defendant's motion for leave to file amendment to his answer was specifically declared to be in the exercise of the discretion of the court. When discretion to do or not to do an act is vested in the court, its exercise may not be called in question, unless it clearly appears that there has been an abuse of the discretionary power. It was said in Osborne v. Town of Canton, 219 N.C. 139, 13 S.E.2d 265, 270: "Decisions of this Court are uniform in holding that after time for answering a pleading has expired, an amendment thereto may not be made as of right, but is a matter which is addressed to the discretion of the court and its decision thereon is not subject to review, except in case of manifest abuse." Biggs v. Moffitt, 218 N.C. 601, 11 S.E.2d 870; Hogsed v. Pearlman, 213 N.C. 240, 195 S.E. 789; United American Free-Will Baptist Church v. Church, 158 N.C. 564, 74 S.E. 14.

In this case we find nothing in the record before us that would require us to hold that the denial of defendant's motion was characterized by abuse of the judicial discretion vested in the judge below. Hensley v. Furniture Co., 164 N.C. 148, 80 S.E. 154. Defendant's exception on that ground cannot be sustained.

The point is made that the clerk, who first heard defendant's motion for leave to file amendment to his answer, allowed the motion, and that the judge heard the matter upon appeal from the ruling of the clerk. But that did not deprive the judge of the power to decide the matter in his discretion when it was properly brought before him. The clerk's ruling, in vacation, upon a motion in a civil action pending in the Superior Court, could not fetter the power of the judge upon appeal duly taken from such ruling. The cause was in the Superior Court and when the matter came before the judge for review his jurisdiction to hear and determine was not derivative. He had the power to consider it de novo. Caldwell v. Caldwell, 189 N.C. 805, 128 S.E. 329; In re Estate of Wright, 200 N.C. 620, 158 S.E. 192; Windsor v. McVay, 206 N.C. 730, 175 S.E. 83; C.S. § 637; McIntosh Prac. & Proc., 62; Hall v. Artis, 186 N.C. 105, 118 S.E. 901; Thompson v. Dillingham, 183 N.C. 566, 112 S.E. 321; Roseman v. Roseman, 127 N.C. 494, 37 S.E. 518. While the clerk is given certain powers, under C.S. § 403, with respect to procedure in civil actions, in vacation, his action is under the control and supervision of the judge when the matter is brought before him by appeal. Turner v. Holden, 109 N.C. 182, 13 S.E. 731; C.S. § 547. In Cushing v. Styron, 104 N.C. 338, 10 S.E. 258, 259, the clerk denied the motion to amend the affidavit in attachment. The plaintiff in that case appealed to the judge who remanded the cause. Upon appeal to the Supreme Court, the judge was reversed, and it was held that the case being before the judge by appeal, it was his duty to allow or deny the motion in his discretion. The court said: "The whole action was before him [the Judge], and he could grant or deny the amendment of the affidavit, in the exercise of a sound discretion. The jurisdiction of the whole action, including all the incidental and ancillary proceedings, was that of the court, not that of the clerk thereof. He was acting, out of term, for the court, and as its servant."

Defendant further challenges the correctness of the ruling below on the ground that the appeal from the clerk should have been dismissed for failure to comply with C.S. § 635. This position, however, cannot be sustained. It appears that the order of the clerk allowing the motion to amend was dated May 18, 1940, and the appeal therefrom by the plaintiff was noted at that time. Without objection the appeal was heard at the May term of the Superior Court of the county by Judge Gwyn who, after hearing argument by both sides, took the matter under advisement, but did not decide it before leaving the district. Thereafter the case was placed on the calendar and was reached at the November term, on December 2, 1940. At that time, without objection, the defendant appeared by counsel and argued the matter before the Presiding Judge. If there was any irregularity in the procedure by which the appeal came on to be heard by the judge, manifestly defendant has waived any right now to object. The fact that the order setting the matter for hearing December 2, 1940, was made by the judge out of term is of no consequence, since the parties voluntarily appeared on that date, and full opportunity was afforded defendant to present his cause.

The defendant in his argument in this court presented the view that his proposed amendment, regardless of the manner and form in which it reached the court, contains allegations of fact which raise the question of the jurisdiction of the court to hear and determine the cause, and that it was necessary for the court to consider it and to find the facts essential to its jurisdiction before rendering final judgment.

While the court below denied defendant's motion for leave to file the amendment, still, by virtue of the defendant's appeal, the proposed amendment is in the record, and we have examined it and noted the allegations of pertinent facts therein stated. It is substantially alleged that the transactions and dealings upon which the New York judgment was based were purely gambling transactions and gambling contracts, mere wagering upon the rise and fall of the market prices of certain stocks, and that there were no actual purchases or sales or deliveries of securities nor intention that there should be actual purchases or deliveries, nor were the contracts in...