Dunn v. Barnes

• Decision Date: 30 June 1875
• Court: North Carolina Supreme Court
• Parties: W. O. DUNN v. W. E. BARNES, Adm'r

73 N.C. 273

W. O. DUNN

v.W. E. BARNES, Adm'r

Supreme Court of North Carolina.

June Term, 1875.

*1 After the decision of a Judge of the Superior Court overruling a demurrer as frivolous, the right to answer over is not a matter of course, but depends upon the sound discretion of the court.

Any informality in the demand for judgment in a complaint is not ground for demurrer, and must be disregarded, when the sum demanded, and how it is due, sufficiently appear from the summons and complaint.

In an action upon a bond “payable in gold or its equivalent in currency,” the amount which the plaintiff is entitled to recover, must be measured by ascertaining its equivalent in currency.

It is error, and contrary to the practice and decisions of our Courts to render judgment in the alternative.

An absolute judgment against an administrator ascertains the debt only, and has no effect in fixing the defendant with assets, or in disturbing the order of administration.

( Garrett v. Smith, 64 N. C. Rep. 93; Gibson v. Groner, 63 N. C. Rep. 10; Oates v. Gray, 66 N. C. Rep. 442; cited and approved. Rowland v. Thompson, 71 N. C. Rep. 457, cited and distinguished from this and approved.)

This was a CIVIL ACTION, for the recovery of money only, tried before Watts, J., at Spring Term, 1875, HALIFAX Superior Court.

The plaintiff alleged that Margaret Dunn, the defendant's intestate, on the 27th day of December, 1865, executed a promissory note, whereby she promised to pay, twelve months after date with interest from date, to L. L. Dunn and F. M. Parker, executors of B. W. Dunn deceased, the sum of six hundred and seventy two dollars and seventy-five cents in gold, or its equivalent. That said Margaret died on or about the first day of January, 1873, and defendant was appointed her administrator on the first day of May, 1873. The said note has been rejected by him. On or about the fifteenth day of August, 1874, the note was transferred for value, to the plaintiff. No part of the note has been paid. That one dollar in gold was worth in United States currency on the 27th December, 1866, one dollar and forty cents.

The plaintiff prayed judgment against the defendant for the sum of ________ dollars with interest thereon from the 27th day of December, 1866, until paid and the cost of the suit, &c.

The defendant demurred to the complaint and for ground of demurrer alleged:

1. That the prayer for judgment does not set out any amount claimed whatever, and demands judgment for nothing.

2. That it would seem from the complaint that the plaintiff desired to claim the value of gold at the time of making the note, and not the value at the time of the payment which the defendant submits is wrong in law.

His Honor overruled the demurrer as frivolous. The counsel for the defendant stated that he had filed the demurrer in good faith and not merely for delay, and that he had a substantial defence. His Honor said that he could not tell what was in the mind of the counsel at the time the demurrer was filed, and he was bound by the face of the demurrer. Counsel then moved the Court for leave to answer the complaint. His Honor overruled the motion and gave judgment in favor of the plaintiff for $957.32, and interst on $672.75 from date in gold or its equivalent in Federal currency, to-wit: $1100.91.

*2 From this judgment the defendant appealed.

Walter Clark, for the appellant .

Busbee & Busbee, contra .

BYNUM, J.

The Court did not err in overruling the demurrer, and we concur also, that the demurrer was frivolous. In such case the right to answer over, is not a matter of course, but depends upon the sound discretion of the Court. C. C. P., 131.

A demurrer to a complaint does not lie at all except in one of the following cases:

1. Where it appears from the face of the complaint, that the Court has no jurisdiction of the person of the defendant, or the subject of the action.

2. That the plaintiff has no legal capacity to sue.

3. That there is another action pending between the same parties for the same cause.

4. That there is a defect of parties plaintiff or defendant.

5. That the complaint does not state facts sufficient to constitute a cause of action. As the complaint is clearly sufficient in all these respects, it was a case which did not allow of the interposition of a demurrer. C. C. P., sec, 95.

Treating the demurrer as “frivolous” or no demurrer, and the judgment as one given for the want of an answer, did his Honor render such a judgment as was warranted in law, and was it rendered according to the course and practice of the Court? Any informality in the demand of judgment in the complaint, must be disregarded when the sum demanded and how it is due, sufficiently appear, from the summons and the complaint. The action is on a note, under seal, for $672.75 “in gold or its equivalent in currency,” dated the 27th December, 1865, and payable twelve months after date, with interest. On overruling the demurrer, and refusing to allow the defendant to answer, his Honor gave judgment in favor of the plaintiff for $957.32 in gold and interest on $672.75, the principal money from the 10th May, 1875, the date of the judgment, or its equivalent in Federal currency, to-wit, $1,100.91, and interest on $672.75, from 10th May, 1875, until paid. The Court...