Griffin v. Bank Of Coleridge, 213.
| Decision Date | 11 October 1933 |
| Docket Number | No. 213.,213. |
| Citation | 205 N. C. 253,171 S.E. 71 |
| Court | North Carolina Supreme Court |
| Parties | GRIFFIN. v. BANK OF COLERIDGE et al. |
Appeal from Superior Court, Chatham County; J. Paul Frizzelle, Judge.
Action by W. H. Griffin, trustee in bankruptcy of Efland (earner, bankrupt, against the Bank of Coleridge and others. From orders overruling defendants' demurrer to the complaint, confirming referee's report, and overruling motion to vacate the judgment of confirmation, defendants appeal.
Error, and cause remanded.
Civil action to recover penalty for alleged exaction of usury.
As the alleged transactions set out in the complaint covered a large number of items and involved a long accounting, a reference was ordered under the statute on motion of defendants. The report of the referee was favorable to the plaintiff and adverse to the defendants. Exceptions were filed to said report, and at the March term (second week), 1933, Chatham superior court, the matter came on for hearing upon defendants' exceptions and plaintiff's motion to confirm the report of the referee, which, by consent, was continued to be heard by the judge at San-ford in Lee county on March 30, 1933, judgment to be rendered as at term.
At the opening of the hearing in Sanford, the defendants interposed a demurrer ore tenus to the complaint on the ground that it did not state facts sufficient to constitute a cause of action. A formal judgment was entered overruling the demurrer, to which the defendants excepted and gave notice of appeal to the Supreme Court. It was agreed that "the summons, complaint, answer and the foregoing judgment" should constitute the case on appeal.
Notwithstanding the appeal of the defendants from the judgment overruling the demurrer, the judge took the papers and later entered judgment dismissing defendants' exceptions, and confirming the report of the referee. The defendants excepted to this judgment, and gave notice of appeal. Time allowed for settling case.
Thereafter, at the May term, 1933, upon notice to plaintiff, the defendants made a motion to vacate the judgment of confirmation entered "out of term and out of the district." Motion denied, and the defendants again excepted and appealed. It was "ordered that this appeal be made a part of the record on appeal in the appeals heretofore entered."
J. H. Scott, of Bennett, and W. R. Clegg, of Carthage, for appellants.
I. C. Moser, of Asheboro, and Wade Barber, of Pittsboro, for appellee.
The defendants have appealed three times from as many judgments in the same case.
As the demurrer, interposed by the defendants at the hearing in Sanford, and renewed here, does not "distinctly specify the grounds of objection to the complaint, " it might well have been disregarded (C. S. § 512), or treated as a motion to dismiss (Elam v. Barnes, 110 N. C. 73, 14 S. E. 621), from the refusal of which no appeal lies. Plemmons v. Imp. Co., 108 N. C. 614, 13 S. E. 188.
"A motion to dismiss for want of jurisdiction or because the complaint does not state a cause of action is not such a demurrer ore tenus as will permit an appeal from its refusal." Burrell v. Hughes, 116 N. C. 430, 21, S. E. 971; Joyner v. Roberts, 112 N. C. 111. 16 S. E. 917.
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Guilford Realty & Ins. Co. v. Blythe Bros. Co., 603
...the grounds of objection to the complaint' and their demurrer 'might well have been disregarded' by the court below. Griffin v. Bank of Coleridge, 205 N.C. 253, 171 S.E. 71. G.S. § 1-128 applies to all demurrers, written or oral. Seawell v. Chas. Cole & Co., 194 N.C. 546, 140 S.E. 85; Adams......
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...v. Paquin, 140 N.C. 83, 52 S.E. 410, 3 L.R.A.,N.S., 307; Seawell v. Chas. Cole & Co., 194 N.C. 546, 140 S.E. 85; Griffin v.Bank of Coleridge, 205 N.C. 253, 171 S.E. 71; Wilson v. Horton Motor Lines, 207 N.C. 263, 176 S.E. The statute G.S. § 1-128 declares that 'The demurrer must distinctly ......
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...upon the evidence already taken and without any additional hearing or notice to the parties. This was irregular. Griffin v. Bank, 205 N. C. 253, 171 S. E. 71; Bohannon v. Trust Co., 198 N. O. 702, 153 S. E. 263; Pruett v. Power Co., 167 N. C. 598, S3 S. E. 830. Recognizing the inappropriate......
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