Haywood v. Bryan
| Decision Date | 30 June 1869 |
| Citation | 63 N.C. 521 |
| Court | North Carolina Supreme Court |
| Parties | E. G. HAYWOOD v. J. S. BRYAN and J. B. SUGG. |
The ratified March 16th 1869, does not repeal § 116, C. C. P., so as to allow of ““pleas” without verification.
COMPLAINT, tried before Watts, J., at Spring Term 1869 of the Superior Court of Wake.
The summons was made returnable in Term time, in accordance with the provisions of the Act of March 16th 1869. When the case was called, the defendants, having no real defence, offered to put in the plea of “payment and set off,” without verification and only for the purpose of delay.
To this the plaintiff objected, and the Court sustained the objection. Judgment for the plaintiff in default of a plea; from which the defendants appealed.
Fowle & Badger, for the appellant .
Whiting, and Batchelor, contra .
When any pleading is verified, every subsequent pleading, except a demurrer, must be verified also. C. C. P. § 116.
The defendant shall appear, and demur, plead or answer, at the term to which the summons shall be returnable; otherwise the plaintiff may have judgment by default, as is now allowed by law: Act to suspend the Code in certain cases, March 16th 1869.
It is admitted by the defendant, that if he had answered, he would have been obliged to verify the answer, under the Code, § 116; but he says that under the Act of March 16th 1869, he is permitted to defend by “plea,” instead of by ““answer” as provided in the Code, and that a plea need not be verified.
We doubt whether “plead” in the act of March 16th 1869 means anything more than the common defence by “answer” in the Code; but if it does, it still requires to be verified, for a plea as well as an answer, is a part of the pleadings; and when the complaint is verified, all the other “pleadings” must be verified also. There is no error. Judgment here for plaintiff.
Judgment affirmed.
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