Mottu v. Davis

• Decision Date: 03 November 1909
• Parties: MOTTU v. DAVIS.
• Court: North Carolina Supreme Court

65 S.E. 969

151 N.C. 237

MOTTU v. DAVIS.

Supreme Court of North Carolina

November 3, 1909

Appeal from Superior Court, Edgecombe County; O. H. Allen, Judge.

Action by J. P. Andre Mottu against J. A. Davis. Judgment for plaintiff, and defendant appeals. Error.

Where a reply only amounted, in effect, to a demurrer, the court properly treated a demurrer also filed as the only additional pleading by plaintiff.

Ordinarily it is irregular and not permissible to address a reply and a demurrer to the same answer.

The plaintiff instituted the action to recover on a judgment of the corporation or hustings court of the city of Manchester and state of Virginia, in the sum of $1,848.25, with interest and cost, and filed his complaint alleging the rendition of the judgment in a court of general jurisdiction, and annexing a transcript of same properly certified, and showing: That the plaintiff had instituted said action in the court in Virginia against the present defendant; that personal service was obtained on defendant in said city of Manchester, and defendant appeared in said court and answered or entered pleas in bar of plaintiff's demand, among other pleas that such demand was on a wagering contract or by reason of a deal in cotton futures between them, and same was prohibited by law, and no recovery could be had thereon; that on issues framed there was verdict and judgment for plaintiff for the amount indicated. In the present action the defendant appeared and answered denying that the corporation court of the city of Manchester was a court of general jurisdiction or that it ever had acquired any jurisdiction over the defendant or the subject-matter of the demand. In this connection the answer further averred, in effect: That defendant was and since always had been a citizen and resident of Edgecombe county and state of North Carolina, and plaintiff was and always had been a citizen and resident of Norfolk county and state of Virginia; that service was obtained on defendant while he was temporarily in the city of Manchester, attending a reunion of Confederate veterans; that said corporation court, in which the judgment was obtained had never had or acquired any jurisdiction either over defendant's person or the subject-matter of the litigation; and that said judgment was void for lack of such jurisdiction. In addition, the defendant made answer, styled by said defendant a "further answer," averring that said judgment was obtained on a gambling debt arising by reason of a deal in cotton futures, and that said demand was illegal and any and all recovery thereon was forbidden by public policy and by express provision of our statute laws and further that said judgment had been obtained by means of fraudulent, false and material and pertinent testimony, etc. At March term, 1908, the plaintiff replied to the further answer of defendant, and alleged that all of the matters and things contained in said further answer were concluded by the judgment of the Virginia court, and pleaded same as an estoppel of record, and at April term, 1909, the plaintiff demurred to said further answer, and, the cause coming on for hearing at the June term of the court, his honor gave judgment sustaining the demurrer in form as follows "This cause coming on to be heard and being heard by the court, and the same being heard and considered by the court, upon the pleadings filed in said cause, the complaint, answer, and demurrer to the answer, and the court being of opinion that the demurrer is well taken, and the same is hereby sustained: Now, on motion of counsel for plaintiff, it is ordered and adjudged that the plaintiff do recover of the defendant the sum of $1,898.99 and interest as alleged in the complaint, and cost of this action to be taxed by the clerk." From said judgment, defendant excepted and appealed.

G. M. T. Fountain, for appellant.

J. R. Gaskill, J. K. Rawley, and F. S. Spruill, for appellee.

HOKE, J. (after stating the facts as above).

The pleading on the part of plaintiff, styled a "reply," and the demurrer, are both addressed in terms to the defendant's "further answer." Ordinarily this is irregular and not permissible. Ency. Pl. & Pr. vol. 6, p. 382. As this further answer, however, is designed and intended to set up two defenses--(1) that the judgment was rendered on a demand growing out of a gambling transaction, and (2) that same was procured by fraud--the course pursued in this instance seems to be sanctioned by the Code, § 485, and, in any event, as this reply only amounted, in effect, to a demurrer, the court below very properly treated the demurrer as the only additional pleading on the part of plaintiff; and, being of opinion that the position presented was well taken, and that the same went to the entire merits of the defense as contained in the answer, his honor entered judgment sustaining the demurrer and awarding plaintiff recovery for the amount demanded. Assuming that the corporation court of Manchester, Va., had jurisdiction of the cause and of the parties, we concur in the ruling of the court below that the matter contained in the further answer does not set forth any valid defense to plaintiff's claim.

As we have said, this further answer alleges that the original demand was on a gambling contract, that a recovery thereon is forbidden, both by our public policy and our statute law, and contends that this defense is now open to the defendant, notwithstanding the rendition of the Virginia judgment; but the question presented has been recently decided against the defendant's position by the Supreme Court of the United States, the final arbiter in such matters, in the case of Fauntleroy v. Lum, 210 U.S. 230, 28 S.Ct. 641, 52 L.Ed. 1039. In that case the pertinent facts are thus summarized in the opinion of the court delivered by Associate Justice Holmes: "This is an action upon a Missouri judgment brought in a court of Mississippi. The declaration set forth the record of the judgment. The defendant pleaded: That the original cause of action arose in Mississippi out of a gambling transaction in cotton futures; that he declined to pay the loss; that the controversy was submitted to arbitration, the question as to the illegality of the transaction, however, not being included in the submission; that an award was rendered against the defendant; that thereafter, finding the defendant temporarily in Missouri, the plaintiff brought suit there upon the award; that the trial court refused to allow the defendant to show the nature of the transaction; that by the laws of Mississippi the same was illegal and void, but directed a verdict if the jury should find that the submission and award were made, and remained unpaid; and that a verdict was rendered and the judgment in suit entered upon the same. The plea was demurred to on constitutional grounds, and the demurrer was overruled subject to exception. There upon replications were filed, again setting up the Constitution of the United States (article 4, § 1), and were demurred to. The Supreme Court of Mississippi held the plea good and the replications bad, and judgment was entered for the defendant. Thereupon the case was brought here." And on these facts it was held that: "(1) A judgment is conclusive as to all the media concludendi, and it cannot be impeached either in or out of the state, by showing that it was based on a mistake of law. (2) A judgment of a court of a state in which the cause of action did not arise, but based on an award of arbitration had in the state in which the cause did arise, is conclusive, and, under the full faith and credit clause of the federal Constitution, must be given effect in the latter state, notwithstanding the award was for a claim which could not, under the laws of that state, have been enforced in any of its courts."

It was contended before us that the decision referred to is not conclusive in this case, because it proceeds on the assumption that the defense there insisted on could not be made available in the state of Missouri, where the judgment was rendered, and if it had been otherwise the case would have been differently decided; the argument being that the clause in the national Constitution controlling the matter (article 4, § 1) only requires that the judgments of a sister state shall be given that faith and credit which they are allowed in the state where rendered, that in Virginia courts of equity will relieve against a judgment had on a gaming transaction, and, this being true, the defense should be made available in the courts of North Carolina. The defendant here takes a correct position as to the meaning and proper application of this clause of the federal Constitution. As shown in the case we are now discussing (Fauntleroy v. Lum supra), many authoritative decisions so hold (Christmas v. Russell, 72 U.S. 290, 18 L.Ed. 475; Hampton v. McConnel, 16 U.S. 234, 4 L.Ed. 378), and it has been embodied in the Public Statutes as the correct legislative interpretation of the constitutional provision as follows: "And said records and judicial proceedings so authenticated shall have such faith and credit given to them in every court within the United States as they have by law or usage in the courts of the state from which they are taken." U.S. Comp. St. 1901, vol. 1, § 905. But the argument is at fault in the premise that the courts of equity in Virginia would interfere for defendant's protection on the facts presented in the case before us. True, in the case to which we were referred by counsel (White v. Washington, Ex'r, 5 Grat. [Va.] 645), it was held, in accordance with doctrine very generally accepted, that, in the absence of any fault or negligence on the part of defendant, a court of equity would relieve against a judgment...