Everett v. Yopp , 247 N.C. 38 ( 1957 )

On Plaintiffs’ Appeal

WlNBORNE, C. J.

In the main plaintiffs assign as error the action of the trial court in setting aside and vacating the judgments of voluntary nonsuit taken by plaintiffs before the Clerk of Superior Court of Onslow County in the actions against King and Hansley, and in abating these two actions.

In this connection it is provided in G.S. 1-74-1 that “No action abates by death * * * of a party * * * if the cause of action survives, or continues”; and “in case of death * * * the court, on motion at any time within one year thereafter, or afterwards on a supplemental complaint, may allow the action to be continued, by, or against, his representative or successors in interest * *

In the light of this statute, and bearing in mind that the three actions had been consolidated, and the original plaintiff being dead, the action did not abate, and the court, on motion at any time, within one year thereafter, or afterwards on a supplemental complaint, could allow the action to be continued by her representatives or successors in interest. And upon the facts alleged upon the affidavit of Alpheus K. Everett, set out in the above statement of the case, the court entered an order on 13 February, 1957, permitting the children and heirs at law of plaintiff “to become parties to this suit,” and to that end they were “permitted to come into court and adopt the several complaints herein filed by their mother or to file new or amended complaint as they may be advised.” This the court had the authority to do. And it was thereafter on 5 March, 1957, that the newly made plaintiffs elected to, and did submit to voluntary nonsuits as to defendants King and Hansley as evidenced by judgments signed by the Clerk on that date, from which the record fails to show any appeals.

It would, therefore, follow that the plaintiffs being parties to the action, having a right to take a nonsuit, and having acted when they had a right to act, and no appeal having been taken from the Clerk’s action in allowing the nonsuits, they are final. Hence the actions against King and Hansley were not thereafter pending for abatement.

Furthermore, the record fails to show that a motion was made or that notice of motion was given to plaintiffs to set aside the judgments of nonsuit and to abate the actions. Nor does the record show that at that time King and Hansley, or the representatives of either of them, were present or that they are now contesting the right of plaintiffs to take a nonsuit.

However the question may arise as to whether the answers of defendants King and Hansley amount to a counterclaim such as would prevent plaintiff taking a nonsuit, G.S. 1-137. Decisions of this Court answer in the negative. See Turner v. Livestock Co., 179 N.C. 457, 102 S.E. 849. In this case it is stated that “the defendants filed answer denying the material allegations of the complaint and pleaded as a counterclaim the following: ‘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 plaintiff’s 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.” And in the opinion by Allen, J., the Court has this to say: “The defendants’ appeal presents the simple question as to whether the allegations of the defendant in the answer that they are the owners of the land in controversy and in possession thereof constitute a counterclaim, because if it is a counterclaim it was the duty of the plaintiffs to file a reply thereto, and upon failure to do so the defendants would be entitled to judgment for want of reply. ‘The criterion for determining whether a defense set up can be maintained as a counterclaim is to see if the answer sets up a cause of action upon which the defendant might have sustained a suit against the plaintiff; and if it does, then such cause of action is a counterclaim; and it must disclose such a state of facts as would entitle the defendant to his action, as if he was plaintiff in the prosecution of his suit, and should contain the substance of a complaint, and like it, contain a plain and concise statement of the facts constituting- a cause of action.’ Garrett v. Love, 89 N.C. 207.

“Again in Askew v. Koonce, 118 N.C. 531, it is said: ‘Unless a defendant has some matter existing in his favor and against the plaintiff, on which he could maintain an independent action, such claim would not be a counterclaim.’

“Tested by this rule, we are of opinion that the defendants have not alleged a counterclaim.

“If they had instituted an independent action alleging simply that they were the owners of the land and in possession it would have been the duty of the court to enter judgment of nonsuit, because if they owned the land and were in possession, nothing else appearing they had no cause of complaint.

“The case would be different if, as in Roper Lbr. Co. v. Wallace, 93 N.C. 23, and in Yellowday v. Perkinson, 167 N.C. 147, there were allegations entitling the defendants to equitable relief, or if it had been alleged that the plaintiffs were setting up a claim which amounted to a cloud upon their title, but none of these allegations appear in the answer, and as they are relying upon the letter of the law they must abide by it.” The cases of McLean v. McDonald, 173 N.C. 429, 92, S.E 148, and Sawyer v. Cowell, 241 N.C. 681, 86 S.E. 2d, 431, cited by defendants Yopp are distinguishable in factual situation.

Applying this rule of the Court to answers of defendants King and Hansley, it is seen that a counterclaim is not alleged. Indeed, the averments in this respect amount to no more than a denial of plaintiffs’ title pro tanto, and a disclaimer to all lands described in the complaint outside the boundary of the land defendant avers he owns and has in possession.

Hence this Court is constrained to hold that the assignments of error presented by plaintiffs in these respects are well taken and the judgment setting aside said nonsuits, and abating the actions, the subjects of plaintiffs’ appeal, are

Reversed.

On Appeal of Defendants Yopp

There are three assignments of error presented by defendants Yopp on their appeal.

Number One is based upon exception of like number to refusal of the court to find as a fact that there was no well defined shore line of the old mill pond in question.

Number Two is based upon exception of like number to the finding of the court that the complaint described and alleged the plaintiff to own lands sufficiently definite to permit oral testimony to locate the land.

Number Three is based upon exceptions three and four to continuing of the injunction to the final hearing.

As to these assignments, it is noted that the court below was dealing in the main with procedural matters and not with the merits of the case. The trial court was of opinion that the allegations of the original complaint were sufficiently definite to admit of verbal testimony to locate the land in question, — and continued the injunction to final hearing as against defendants Yopp, and forbade them to cut any timber growing on the lands covered by the old Ennett Mill Pond referred to in the pleading. In so ruling, error is not made to appear on this appeal. Indeed reference to the record on former appeal (219 N.C. 540) reveals the fact that on hearing before first referee much evidence was offered by the parties bearing upon the matters at issue in the case. °

Moreover, the demurrer ore tenus now filed in this Court by defendants Yopp for that the complaint as amended by the affidavit in the record does not state facts sufficient to constitute a cause of action is not well founded. It requires no further elaboration. Hence on defendants’ appeal prejudicial error is not made to appear, and the judgment from which the defendants Yopp appeal is affirmed.

Now that the proper parties plaintiff, and proper parties in place of T. 0. Yopp, deceased, are properly before the court, the case may and should proceed in an orderly fashion to an early conclusion on its merit as the law directs.

On plaintiffs appeal

Reversed.

On defendants Yopps’ appeal

Affirmed.