Turner v. Southeastern Grain & Live Stock Co.

• Decision Date: 21 April 1920
• Docket Number: 190,193.
• Parties: TURNER ET AL. v. SOUTHEASTERN GRAIN & LIVE STOCK CO. ET AL.
• Court: North Carolina Supreme Court

102 S.E. 849

179 N.C. 457

TURNER ET AL. v. SOUTHEASTERN GRAIN & LIVE STOCK CO. ET AL.

Nos. 190, 193.

Supreme Court of North Carolina

April 21, 1920

Appeal from Superior Court, Craven County; Connor, Judge.

Action by Chesler D. Turner and others against the Southeastern Grain & Live Stock Company and others to recover land. From a judgment awarding part of the land to defendants and directing nonsuit as to the rest of the land, both parties appeal. No error.

For an answer to state a counterclaim entitling defendants to judgment on plaintiff's failure to reply thereto, it must set up a cause of action which defendant could have maintained in an independent suit against plaintiff.

This is an action to recover land.

The plaintiffs filed their complaint alleging the ownership of the land, and the defendants filed answer denying the material allegations of the complaint and pleading as a counterclaim the following:

"24. That they were at the time of bringing this action and are now the owners in fee simple and in possession of the land claimed by the plaintiffs and they plead said ownership as a counterclaim; wherefore defendants demand judgment that they go without day as to plaintiffs' claim and that they be adjudged the owners in fee simple of the lands claimed by plaintiffs and that they recover cost and have general relief."

The plaintiffs failed to file a reply to the answer, and the defendants moved for judgment upon the alleged counterclaim for want of a reply which was refused, and the defendants excepted.

During the progress of the introduction of evidence, the plaintiffs solemnly admitted in open court that the defendants were the owners in fee simple and in possession of the home tract No 1 described in the deed, a certified copy of which was then and there introduced by the plaintiffs from Wm. M. Jones surviving executor of Lawrence J. Haughton, deceased, and others to C. E. Foy, J. W. Stewart, T. A. Uzzell, and W. S Chadwick dated 15th day of October, 1912, and registered in the office of the register of deeds of Jones county, N. C., in Book 60, page 396, and particularly described in said deed, containing 7,850 acres, more or less. And said admission was taken down in a very short form by the official court stenographer at the time the same was made a solemn admission of the plaintiffs in the course of the trial, and in the judgment entered it was adjudged on said admission, and the reference to the same matter in the consolidated complaint, that the defendants had title to and were in possession of said tract of land to which said admission referred.

During said term of the court and some days after the trial of said cause in which his honor had directed that a judgment as of nonsuit be drawn as to all the remaining matters involved in plaintiffs' complaint, plaintiffs in open court gave a general notice of appeal and had entry made affecting the same. The court had up till this time held open the matter of signing the judgment at the request of the plaintiffs, so that they might consider the matters involved and confer with such counsel as they saw fit. Later during the term his honor signed the judgment set out in the record, and also signed the statement of the case on appeal of defendants set out in the record of defendants' appeal.

At said time plaintiffs' counsel appeared in open court and stated that he wished all of his entries as to the appeal and notice of appeal that had been entered stricken out, and it was so ordered, and stated that he would rely upon the notice of appeal in writing to be served by him, and that he did not desire to appeal from so much of the judgment as granted a nonsuit against the plaintiffs, but only from that part adjudging the defendants the owners of said tract No. 1 in said deed from Wm. M. Jones, executor, and others to C. E. Foy, J. W. Stewart, T. A. Uzzell, and W. S. Chadwick, and that he then and there desired to repudiate said admission. His honor later refused to permit him to repudiate it and entered up judgment.

It was adjudged by the court that the defendants were the owners of the land covered by admissions of the plaintiffs, and that the plaintiffs be nonsuited as to the remainder of the land.

Both the plaintiffs and the defendants appealed from the judgment.

The plaintiffs assign as error his honor's rendering judgment in favor of the defendants for the 7,850-acre, more or less, tract of land described in exception 1 above.

The defendants assign as error the failure to enter judgment in their behalf for all of the land described in the complaint because of the failure of the plaintiffs to file a reply.

Frank Nash, of Raleigh, and C. D. Turner, of Hillsboro, for plaintiffs.

D. L. Ward, T. D. Warren, Guion & Guion, Moore & Dunn, and Ward & Ward, all of New Bern, for defendants.

ALLEN J.

The plaintiffs do not note any exception in the record to the refusal of his honor to strike out the admission...