Lucas v. . R. R. , 121 N.C. 506 ( 1897 )

The judgment referred to was as follows:

"This cause coming on to be heard, by consent and agreement (507) of parties, it is agreed: That the defendant shall pay to the plaintiff's attorney, C. C. Lyon, $100, and shall pay the costs of this action, to be taxed by the clerk; and shall widen or deepen the ditch on the north side of the track of the defendant from Tom Daniel Ridge to Corcan Branch, or near Wayman Creek, and shall do this ditching within a reasonable time — say, six months. And the plaintiffs agree to accept the same in full payment, satisfaction and compromise of all damages they have sustained by reason of the construction of ditches and water drains, and all damages by reason of changing and diverting any water from its natural course, and all damages by reason of overflowing plaintiffs' land named in complaint with water, and all damages resulting from placing an embankment on defendant's track across branch running through plaintiffs' land, and of all damages to plaintiffs' land by overflow of water from all sources.

"In accordance with the above agreement, and by consent of parties, it is adjudged: That the plaintiffs recover of the defendant the sum of $100, the same to be paid to C. C. Lyon, attorney of plaintiffs, and the costs of this action, to be taxed by the clerk."

The defendant answered alleging that they had complied with the judgment, which was set out in full in the answer. At the close of the testimony the defendant moved (not in writing) to remove the cause from Bladen County to Columbus County for trial for the reason that no part of the land injured, as shown by the testimony, lay in Bladen County, but in Columbus County. The motion was overruled. There was a verdict for the plaintiffs for $800, and from the judgment thereon the defendant appealed. Though there is a large number of exceptions, they are not numbered as required by Rule 27 and noted on the margin of the record as required by Rule 21. Being necessarily a part of the "case on appeal." the numbering of the exceptions and marginal references thereto should be printed. It is a great convenience on the argument to have this, especially when, as in this case, the exceptions are numerous. The attention of appellants is called to what was said on this subject inAlexander v. Alexander, 120 N.C. 472 (on page 474), and to the penalty prescribed by Rule 20 for failure to comply with the rule.

Without adverting to the fact that this is an action for damages resulting from breach of a contract (set out as the basis of a former judgment) to do certain ditching on the defendant's own land, and not directly for a tort for "injuries to real estate," the motion for a change of venue was properly refused. If it be conceded that it was an action for "injuries to realty," the Code, sec. 190 (1), an error as to the venue is not as formerly a defect affecting the jurisdiction, but only ground for a motion to remove, which was waived, since the motion was neither "made in writing" nor "before the time of answering expired." Code, sec. 195; McMinnv. Hamilton, 77 N.C. 300; Lafoon v. Shearin, 91 N.C. 370 (which was an action of ejectment); Morgan v. Bank, 93 N.C. 352;County Board v. State Board, 106 N.C. 81; Baruch v. Long, 117 N.C. 509.

There is no force in defendant's suggestion that the complaint does not disclose in what county the land lies, for it alleges as the cause of action the breach of the agreement embraced in the judgment, referring to the judgment appropriately, so that the defendant, by examining the pleadings in such former action, would have had notice of the locus, and, indeed, in its answer the defendant sets out the judgment and contract in full and avers it has fully complied therewith and has done the ditching therein required. Besides, if there had been any doubts as to the locality, the defendant could have asked for a bill (509) of particulars before answering (Code, sec. 259; Bryan v. Spivey,106 N.C. 95) or that the pleadings be made more specific. Code, sec. 261; Fulps v. Mock, 108 N.C. 601.

There are many other exceptions, but they are without merit and need not be discussed. Though not abandoned, with propriety they were neither insisted upon nor argued in this Court.

No error.

Cited: Lucas v. R. R., 122 N.C. 938; Baker v. Hobgood, 126 N.C. 152;Brinkley v. Smith, 130 N.C. 226; Sigman v. R. R., 135 N.C. 182.