Watson v. Lee County
| Decision Date | 11 October 1944 |
| Docket Number | 235. |
| Citation | 31 S.E.2d 535,224 N.C. 508 |
| Parties | WATSON v. LEE COUNTY et al. |
| Court | North Carolina Supreme Court |
Action to recover of defendant Lee County fees alleged to be due plaintiff as former clerk of the Superior Court. Plaintiff's demurrer to the answer was overruled and plaintiff appealed.
K R. Hoyle and J. G. Edwards, both of Sanford, and S. R. Hoyle of Carthage, for plaintiff.
Teague & Williams and Gavin, Jackson & Gavin, all of Sanford, for defendants.
The appeal in this case brings up for our consideration questions relating to the sufficiency of the pleadings. The plaintiff demurred to the answer on the ground that the defenses sought to be interposed to his complaint were insufficient in law and in substance. The court below being of opinion the demurrer should be overruled so adjudged, and the plaintiff appealed.
This action in its present form was instituted in consequence of the decision in State ex rel. Underwood v. Watson et al., 223 N.C. 437, 27 S.E.2d 144. It appears from the facts recited in that case that W. G. Watson had been removed as clerk of the Superior Court of Lee County, and that in the action against him and the surety on his bond for money and property withheld he had attempted to file a cross-complaint against the County for balance alleged to be due him by the County on account of fees as clerk of the court. The cross-complaint having been stricken out, the plaintiff brings this action to recover on this claim.
The plaintiff's complaint in this action is practically identical with his cross-complaint in the former action, with the exception of an additional paragraph. In the first paragraph the plaintiff alleges in substance that during his term of office as clerk from 1928 to 1941 Lee County instituted 4701 tax foreclosure suits which were prosecuted to final judgment, and that Lee County became indebted to him 'as clerk for his legal fees for services therein' in the sum of $46,193.50. The docket numbers and dates of the tax foreclosure suits are set out. In the second paragraph it is alleged tht in the audits heretofore caused to be made by Lee County of the clerk's office and funds the credit given plaintiff of $9,564.06 was for only a portion of the fees due him, leaving $36,629.06 unpaid. In the third paragraph of the complaint reference is made to certain audits and bill of particulars. From an examination of the record in the former suit when it was here at Fall Term, 1943, it appears that the bill of particulars and audits mentioned in this paragraph were involved only in the former suit which was instituted in the name of State ex rel. E. M. Underwood against W. G. Watson and the surety on his official bond for the purpose of recovering money and property withheld by Watson as former clerk, and are pertinent to the present action only as showing credits given for fees in tax foreclosure suits.
The defendant Lee County demurred to the complaint as insufficient and on the ground that the audits referred to did not show any amount due plaintiff by the County, but showed the payments referred to were made in full satisfaction. This demurrer were overruled by Judge Parker. The defendants excepted, and, having reserved right to have their exception heard if and when the case reached the Superme Court, filed answer.
Defendants in their answer admitted the plaintiff was clerk from 1928 to 1941, and that Lee County during this period instituted many tax foreclosure suits, but denied any indebtedness to the plaintiff on account of the fees alleged; that the fees due the clerk on tax foreclosure suits are and were fixed by law, and imposed no liability upon the County therefor.
Defendants, however, alleged that in June 1935 the Board of County Commissioners had entered into an agreement with plaintiff to pay the sum of $1.50 per suit in full settlement for all tax suits instituted by Lee County, and plaintiff agreed to accept this amount in full compensation for his services in such tax foreclosure suits, and that he has received full credit and compensation therefor for all suits instituted during his term of office, and that plaintiff has been paid and has received the amount agreed upon, in full and complete settlement, satisfaction and accord for all fees and services rendered by him in said suits, and is now estopped to make further claim. The defendants further allege that, while the County does not now contest plaintiff's right to receive what has been paid him, they aver Lee County was not and is not indebted to plaintiff in any sum whatsoever for costs in said suits, and that he is not entitled to maintain an action for the same.
In a further defense defendants allege plaintiff has filed no claim for the indebtedness alleged in the complaint with defendant County or its treasurer; that his claim is barred by the two years and three years statute of limitations, and that, since the costs in tax foreclosure suits if and when paid pass through the hands of the clerk or the commissioners appointed by him, his failure to collect the costs accruing to him would be attributable to his negligence and laches.
The plaintiff demurred to the answer as insufficient to constitute a valid defense to plaintiff's claim. The principal grounds of objection are: (1) That the defense is based on an agreement to pay the clerk as and for his fees in cases instituted in the Superior Court less than the amounts fixed by statute, and that such agreements are against public policy and void, and that receipt by plaintiff of less than legal fees does not estop him from claiming the balance due; (2) that the two years statute on this record does not apply, for that it appears from the answer and exhibits that the matter of his claim was before and considered by defendants from time to time up to the time of his removal from office, and payments and credits thereon were acknowledged by defendants to and including year 1941; (3) that no facts appear in the answer upon which to base the allegations that plaintiff was guilty of laches or negligence.
In this Court the defendants demurred to the complaint and moved to dismiss on the ground that it did not state facts sufficient to constitute a cause of action. In view of the antecedent proceedings in the cause, may this Court now consider the defendants' demurrer to the complaint on this ground? We think so. It is the rule prevailing in this jurisdiction that a demurrer on the ground that the complaint does not state a cause of action may be interposed at any time in either trial or appellate court. It was said in Snipes v. Monds, 190 N.C. 190, 129 S.E. 413: 'Even after answering in the trial court, or in this court, a defendant may demur ore tenus, or the court may raise the question ex mero motu that the complaint does not state a cause of action.' Garrison v. Williams, 150 N.C. 674, 64 S.E. 783; Aldridge Motors v. Alexander, 217 N.C. 750, 9 S.E.2d 469; Jones v. Jones Lewis Furniture Co., 222 N.C. 439, 23 S.E.2d 309. In Elam v. Barnes, 110 N.C. 73, 14 S.E. 621, Clark, J., used this language: 'The court here will look into the record, and if there is a want of jurisdiction, or a failure to state a cause of action, it will ex mero motu dismiss the action, for such defect dannot be waived.'
The reason of the rule is that if the basis of the action, the statement of the cause of action in the complaint, is defective in substance and insufficient, the action itself must fail, and when...
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