Wilson v. Sykes

• Decision Date: 31 January 1881
• Citation: 84 N.C. 215
• Court: North Carolina Supreme Court
• Parties: A. J. WILSON v. J. C. SYKES and James Austin.

84 N.C. 215

A. J. WILSON

v.J. C. SYKES and James Austin.

Supreme Court of North Carolina.

January Term, 1881.

CIVIL ACTION for damages tried at Fall Term, 1880, of MECKLENBURG Superior Court, before Seymour, J.

In his complaint the plaintiff states his case to be as follows: That the sheriff of his county having an execution against him sold his land, and the defendant, Sykes, became the purchaser; and the sale being by the acre, it became necessary to have a survey in order to ascertain the exact number of acres, which survey the sheriff and purchaser employed the defendant, Austin, to make; that the defendants, the one being the purchaser, and the other the surveyor, conspired to defraud the plaintiff, and in pursuance thereof, after surveying the land and ascertaining that it contained seven hundred acres, they reported to the sheriff that it contained only five hundred and fifty acres, and procured a deed from him, by paying for the land at that rate, whereby the plaintiff was damaged to the amount of six hundred dollars, for which sum he demands judgment.

The defendant, Sykes, answered, admitting the sale by the sheriff, and the purchase by himself, and denying all the other allegations in the plaintiff's complaint. The defendant, Austin, filed no answer.

When the cause was called for trial and before a jury were impanelled, the defendant moved the court to dismiss the plaintiff's action, upon the ground that the complaint did not state facts sufficient to constitute a cause of action, and His Honor, being of that opinion, allowed the motion, and the plaintiff appealed.

Mr. W. H. Bailey, for plaintiff .

Messrs. Wilson & Son, for defendants .

RUFFIN, J.

This court has in several instances spoken of this summary way of disposing of cases as being irregular, and have intimated the opinion that good pleading required that such objections should be taken by demurrer, and that the defect in the complaint, if merely formal, was waived by an answer to the merits. Still, if His Honor were of the opinion that the defect was not in the manner of stating his case but in the plaintiff's cause of action itself, so that however it might be developed by the proofs, or aided by amendment, it could not be maintained, he did well to economize the time of his court by dismissing it.

If such was His Honor's view of the plaintiff's cause of action, we cannot concur therein. To us it seems clear that he has been damaged, provided the allegations of his...