Motley v. Thompson, 607
| Decision Date | 14 June 1963 |
| Docket Number | No. 607,607 |
| Citation | 259 N.C. 612,131 S.E.2d 447 |
| Parties | George E. MOTLEY and Thelma B. Motley v. James THOMPSON, James I. Essa and Joseph Essa. |
| Court | North Carolina Supreme Court |
J. Kenneth Lee, Greensboro, for defendants-appellants.
Wm. E. Comer, Greensboro, for plaintiffs-appellees.
The complaint verified by plaintiffs' counsel alleges in substance: Plaintiffs, husband and wife, on 24 February 1962 were residing in a house at 517 High Street, Greensboro, North Carolina, in which they had household furniture and furnishings and typesetting equipment of which they were joint owners. On that day while they were not in the house, defendant James Thompson an employee of the defendants James I. Essa and Joseph Essa acting under the orders of his employers, drove a truck to this house. The door was locked. He knocked the front door down with a sledge hammer and crowbar, entered, demolished the house in part, loaded the truck with some of their furniture and furnishings of the value of $1,600, and hauled it away to some place still unknown to them. Defendants also hauled away $1,000 of their typesetting equipment, which has never been returned. When Thelma B. Motley returned to the house, Thompson in the presence of James I. Essa was loading the truck, again with their furniture and furnishings and part of the typesetting equipment. She asked them to stop and get off the premises. They refused. She obtained a warrant against them for trespass. Whereupon, they dumped the furniture and furnishings and typesetting equipment in the truck on the ground and drove off. Plaintiffs carried this back in the house, where it was damaged in the amount of $650 by rain coming into the partly demolished house. Joseph Essa claimed to be the owner of the house, but had never obtained possession. By reason of defendants' willful and malicious acts of trespass, they are entitled to recover from defendants jointly and severally actual damages in the amount of $3,250 and punitive damages in the amount of $2,500.
All the defendants filed a joint answer verified by their counsel, which we summarize: They deny that plaintiffs resided in the house at 517 High Street and had any articles of household furniture and furnishings and typesetting equipment therein at the times complained of in the complaint, and deny that they ever removed any property of plaintiffs therefrom. They aver the house was owned by defendant Joseph Essa, and was unfit for human habitation. They admit that James Thompson at the time was acting under the instructions of the defendant Joseph Essa. They deny all other allegations of the complaint. The answer contains a counterclaim and cross-action which we summarize: By deed dated 8 November 1950, and properly recorded, plaintiffs conveyed the house and premises involved in this action in fee simple to Clarence M. Winchester and wife. Defendant Joseph Essa by mesne conveyances became the owner in fee simple of this property on 8 February 1961, and has been such owner since that time. If plaintiffs did occupy the house, such occupancy was illegal. Plaintiffs by threats and the issuance of malicious criminal processes have prevented defendants from taking possession of the premises, and such actions on their part 'constitute at least constructive possession of the plaintiffs.' Pursuant to the instructions of Joseph Essa, defendant Thompson began taking down sheet rock in one room of the house and loading it on a truck to haul away, and before the truck was moved, plaintiffs arrived and by threats of violence caused him to stop. By reason of plaintiffs' acts Joseph Essa has been deprived of the use and possession of his property, which has a rental value of $50 a month for parking purposes. That plaintiffs refused to vacate the premises thereby depriving defendant of the rents and profits therefrom. That plaintiffs are insolvent and a judgment against them for damages would be worthless. Wherefore, defendants pray that plaintiffs' action against them be dismissed, that the defendant Joseph Essa have judgment for the possession of the property, and a judgment for rents and profits of said property against them resulting from their retention and possession of same. The answer with its counterclaim and cross-action was served on plaintiffs on 27 April 1962.
On 9 May 1962 plaintiffs demurred to the counterclaim and cross-action. On 13 June 1962 Phillips, J., entered an order overruling the demurrer. Plaintiffs did not except to the ruling.
On 16 July 1962 plaintiffs filed a verified reply to defendants' counterclaim and crossaction, in which they deny Joseph Essa is the owner of the house and premises, and deny that they conveyed the house and premises to Clarence M. Winchester and wife, and aver the signatures on the Winchester deed are not their signatures. They further deny the house was unoccupied and unfit for human habitation, and aver that the male plaintiff has been in possession of the house and premises at all times.
On 9 August 1962 Esther R. Burch, assistant clerk of the superior court of Guilford County, entered a judgment by default final stating that it appeared that defendants' cross-action was an action in ejectment, which was served on plaintiffs on 27 April 1962, that plaintiffs before filing their reply thereto did not execute and file an undertaking as required by G.S. § 1-111, and did not comply with the requirements of G.S. § 1-112 so as to file the reply without a bond, and decreeing that plaintiffs be removed from the premises described in the pleadings, and that Joseph Essa be put in possession thereof.
On 4 December 1962 defendants filed a motion, in which they allege in part 'that because of the very technical nature and manner in which the judgment by default final was obtained, defendant Joseph Essa did not seek to have incorporated in that judgment any other relief except the right to be put in possession of the premises here in controversy.' That by reason of failure on plaintiffs' part to comply with the requirements of G.S. § 1-111 and § 1-112 Joseph Essa is entitled to have plaintiffs' reply stricken from the record. Wherefore, defendants pray that plaintiffs' reply be stricken from the record; that judgment on the pleadings be granted in favor of the defendants; and that in the event the court does not see fit to grant the relief requested in their motion, that a pre-trial conference be set by the court to determine the issues of fact arising out of the pleadings so that a trial by jury may be had on those issues.
On 20 December 1962 plaintiffs filed a motion answering defendants' motion, adnitting the defendants filed a cross-action in ejectment and claim for rents but that the cross-action does not allege that the plaintiffs are in the actual possession of the premises, but only that 'they were in constructive possession' and, therefore, no bond was required by the provisions of G.S. § 1-111. In their motion plaintiffs further aver that the defendants raised no question about their not filing a bond before filing the complaint, and that later the attorney for the defendants without any notice had the assistant clerk of the superior court of Guilford County to enter the judgment by default final appearing in the record. They further aver that if the court should find that the judgment by default final was proper, it would in nowise end this litigation in that a judgment as to the right of Joseph Essa to the possession of the property would not determine their original cause of action for trespass quare clausum fregit, even if plaintiffs were not the owner of the property. That even if defendants owned the property they had no right to destroy and remove plaintiffs' personal property therefrom, they being in possession. Wherefore, plaintiffs pray that the motion of defendants be disallowed, and that the judgment by default final heretofore signed without notice to the parties or their attorney of record be stricken.
Judge Crissman entered an order denying defendants' motion and allowing plaintiffs' motion. Defendants excepted to the order, and appealed to the Supreme Court.
Defendants' assignments of error are based on one exception, and that one exception is to Judge Crissman's order.
Defendants assign as error that Judge Crissman found no facts to support his order. This contention is not tenable. The record does not show that defendants requested Judge Crissman to do so, and in the absence of a request that a finding of facts be made by him in this proceeding, it is presumed that the judge upon proper evidence found facts sufficient to...
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...or dispossession of the property." Fordham v. Eason, 351 N.C. 151, 155, 521 S.E.2d 701, 704 (1999) ; see Motley v. Thompson, 259 N.C. 612, 618, 131 S.E.2d 447, 452 (1963).The sheriff had a locksmith change the locks to plaintiffs' residence after defendants fully complied with chapter 45. M......
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... ... Eason , 351 N.C ... 151, 155, 521 S.E.2d 701, 704 (1999) (citing Motley v ... Thompson , 259 N.C. 612, 618, 131 S.E.2d 447, 452 ... (1963)). A successful trespass to ... ...
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