Smith v. Moore

• Citation: 79 N.C. 82
• Court: North Carolina Supreme Court
• Decision Date: 30 June 1878
• Parties: JOHN T. SMITH and wife v. WILLIAM A. MOORE.

79 N.C. 82

JOHN T. SMITH and wife

v.WILLIAM A. MOORE.

Supreme Court of North Carolina.

June Term, 1878.

CIVIL ACTION, tried at Spring Term, 1878, of CHOWAN Superior Court, before Furches, J.

It appeared that upon the petition of the feme plaintiff and other tenants in common, the defendant was appointed commissioner to sell certain lands, that the sale was made, the money collected by the defendant, title made to the purchaser, and the fund paid to the parties entitled, except the feme plaintiff, who complains and alleges that the defendant is indebted to her in the sum of $272, being her share of the proceeds arising from the sale of lands in Perquimans county, described in the petition of Joseph W. Barrow and others, ex parte, and received by the defendant as commissioner. The defendant admits that he received the fund as aforesaid, but alleges that he paid her the amount due before her marriage with the plaintiff, and that she was of full age when she received the same. And he further alleges that if she was an infant when she employed him as an attorney to collect her debts and received the money demanded in the complaint, she has ratified and confirmed her contract with him after she attained the age of twenty-one years, by bringing this action for the proceeds of sale instead of sueing the tenant for possession; and that since her marriage with the plaintiff, John, and since she attained the age of twenty-one years, she has ratified said contract and payment by receiving in full all monies due her from the defendant, through her agent, the said John T. Smith, her husband, and that if she was an infant when said money was received to her use by the defendant, she was without guardian, and the defendant at her request expended the same for her necessary maintenance and support; and that if she was an infant when said money was paid to her, she obtained the same from the defendant by fraudulently pretending to him that she was of full age; and for further answer the defendant says that he did not promise to pay the sum demanded within three years before the commencement of this action, and pleads the statute of limitations in bar of the same. The plaintiffs in reply deny the payment alleged in the answer, and say that at the time of any payment by the defendant to the feme plaintiff, she was an infant, and specially plead her infancy in bar thereto.

Upon the trial at Spring Term, 1877, the jury found the issues in favor of plaintiffs, and on defendant's motion the verdict was set aside and a new trial granted. Upon the hearing before His Honor, the defendant moved to dismiss the action for want of jurisdiction, which motion was allowed and the plaintiffs appealed.

Messrs. Gilliam & Gatling, for plaintiffs .

Messrs. Mullen & Moore, and J. B. Batchelor, for defendant , cited Jarman v. Saunders 64 N. C., 367; Mauney v. Pemberton, 75 N. C., 219; Chambers v. Penland, 78 N. C., 53.

FAIRCLOTH, J.

We are not informed by His Honor nor by any statement of the case, as it is called, on what ground this action was dismissed. We are told by counsel in their argument here, that it was done because there was another proceeding pending in which the plaintiffs could have complete relief, and that, therefore, this action can not be sustained. This objection is not made by demurrer, plea or answer, but it is insisted that this Court, looking at the pleadings alone, can see, as a matter of law, that the plaintiffs had a complete remedy in another proceeding therein referred...