Greer v. Bank of Damascus

• Decision Date: 27 January 1932
• Docket Number: 361.
• Citation: 162 S.E. 233,202 N.C. 220
• Parties: GREER et al. v. BANK OF DAMASCUS et al.
• Court: North Carolina Supreme Court

162 S.E. 233

202 N.C. 220

GREER et al. v. BANK OF DAMASCUS et al.

No. 361.

Supreme Court of North Carolina

January 27, 1932

Appeal from Superior Court, Ashe County; Oglesby, Judge.

Action by J. Reggie Greer, administrator of W. T. Greer, deceased, and another against the Bank of Damascus and another. From the judgment rendered, defendants appeal.

Modified and affirmed.

It was within trial court's discretion to withdraw a juror and continue cause.

This is a civil action brought by plaintiffs against defendant. ""Wherefore, the plaintiffs pray judgment against the Bank of Damascus for the sum of $3,000.00 and interest on it from the 20th day of September, 1927, until paid, together with the cost of this action."

The defendants denied plaintiffs' right to recover and set up new matter and counterclaim.

The judgment of the court below was as follows: "This cause coming on to be heard before His Honor, John M. Oglesby, Judge Presiding, and a jury, the Court, in its discretion, withdraw a Juror and continued this cause, and ordered that defendant, the Bank of Damascus, pay into this Court before the next term thereof the sum of $7,000.00, to be disbursed according to law, it appearing to the Court, by admission of the Bank of Damascus, that the purchase price bid by said bank had not been paid."

W. R. Bauguess and U.S. G. Bauguess, both of Jefferson, for appellants.

T. C. Bowie, of Jefferson, for appellees.

PER CURIAM.

This controversy was here before, In re Bauguess, 196 N.C. 278, 145 S.E. 395. The plaintiffs only contend that they can recover $3,000 and interest. Why, therefore, compel defendants to pay $7,000 into court? We think in the interest of justice the court should not have ordered more than $3,000 and interest, the amount plaintiffs sue for, to be paid into court. It was discretionary for the court below to withdraw a juror. Wolf v. Goldstein, 192 N.C. 818, 135 S.E. 39; State v. Guice, 201 N.C. 761, 161 S.E. 533. The ordering of $7,000 to be paid into court effected a substantial right.

In modifying and affirming this judgment, we do not desire it to be understood that the other questions appearing of record were considered, that arose on the trial in the court below. They are not passed on or decided on this appeal.

The judgment is modified and affirmed.