Lee v. Martin

• Decision Date: 17 March 1926
• Docket Number: 165.
• Parties: LEE et al. v. MARTIN et al.
• Court: North Carolina Supreme Court

132 S.E. 14

191 N.C. 401

LEE et al. v. MARTIN et al.

No. 165.

Supreme Court of North Carolina

March 17, 1926

Appeal from Superior Court, Pamlico County; Bond, Judge.

Consolidated actions by the State, on the relation of R. H. Lee and others, against E. E. Martin and the New Amsterdam Casualty Company. From the judgment, plaintiffs and the corporate defendant appeal. No error.

This case was heard in the Supreme Court at the fall term, 1923 and is reported in 118 S.E. 914, 186 N.C. 127. Upon petition it was reheard, and the decision of the court is reported in 123 S.E. 631, 188 N.C. 119. It was again appealed to the Supreme Court and the opinion of the court is reported in 126 S.E. 738, 189 N.C. at page 247. The facts relating to the history and course of the controversy are found in the printed reports referred to and for this reason will not be repeated.

There are two appeals. The first appeal is on behalf of the plaintiff Lee and others, growing out of a claim of $1,172.14. The other is an appeal by the defendant Casualty Company on a judgment upon the verdict for claim of $1,040.95.

Evidence offered in relation to admitted allegation is irrelevant.

Z. V Rawls, of Bayboro, for plaintiffs.

F. C Brinson, of Bayboro, and Ward & Ward, of New Bern, for defendants.

BROGDEN J.

In the appeal reported in 126 S.E. 738, 189 N.C. 247, Stacy, J said:

"'Our original opinion [118 S.E. 914, 186 N.C. 127] will be modified to the extent above indicated; the cause will be remanded, to the end that it may be heard and determined according to the usual course and practice of the court, not inconsistent with the principles announced in this opinion.' Under a proper interpretation of the above excerpts from our last opinion, we think his honor was in error in holding 'that the recent opinion rendered by the Supreme Court in this action is a bar to plaintiff relators' rights to show the dates of the defalcations of the various funds, other than as set out in the record in the case as tried before the Supreme Court."'

It was further held that the plaintiffs should have the right and opportunity to present their claims, and permission was given to amend the pleadings, if necessary, to properly present the disputed questions.

The above opinion was rendered in March, 1925. Thereafter in April, 1925, plaintiffs filed an amended complaint, paragraph 3 being as follows:

"That, by virtue of the color of his office as clerk superior court of Pamlico county, the defendant E. E. Martin, on the 20th day of June, 1917, received as a fund paid into court for plaintiff, by L. J. Upton & Co., $1,172.14."

The defendants, answering said paragraph 3, say: "That allegation 3 is not denied."

The fifth allegation of said amended complaint filed by the plaintiffs is as follows:

"That on the 20th day of October, 1919, plaintiff demanded of the defendant E. E. Martin, clerk superior court, the payment of $1,172.14; the said sum having been received by the defendant Martin by virtue and color of his office as a fund paid into court for plaintiffs, and payment thereof was refused."

The defendant, answering paragraph 5 of the complaint, says:

"That as to allegation 5, it is admitted that plaintiff demanded the payment of $1,172.14 on the 20th day of October, 1919, and the remainder of allegation 5 is denied, and it is averred that up to the time of said demand on the 20th day of October, 1919, the plaintiff had declined and refused to accept the money."

Thereafter on November 10, 1925, and during the term at which this action was tried, the plaintiff, without any order of court, so far as this record discloses, presented a reply, paragraph 3 of which was as follows:

"It is admitted that the said fund of $1,172.14 was paid into court, June 20, 1917, by Upton & Co., as a tender to plaintiff, and that the case of Lee v. Upton is reported in 100 S.E. 268, 178 N.C. 198, but it is averred that the said fund was misappropriated and embezzled by the defendant Martin, on June 20, 1917, the date of the receipt of said fund by the defaulting clerk."

The defendants thereupon made a motion to strike out from said reply the allegation as to misappropriation on June 20, 1917, and the judge allowed the motion, striking out from said reply the foregoing words shown in italics. The plaintiff excepted and assigned the action of the judge as error.

The plaintiff further attempted to show by the vice president of the bank that the Upton check of $1,172.14, payable to E. E. Martin, was deposited in the bank in June, 1917, by E. E. Martin to his personal account, and that said E. E. Martin at said time did not have an official account in this particular bank. The defendant objected to this testimony and the objection was sustained by the trial judge.

It should be observed in the outset that the check for $1,172.14 does not appear to have been made to E. E. Martin as clerk but merely to E. E. Martin, and further the fact that ...