Laney v. . Hutton , 149 N.C. 264 ( 1908 )

This action was brought before a justice to recover an indebtedness by the defendants to the plaintiffs for work and labor performed at their request.

The summons was issued 16 January, 1907, to Caldwell County for Will Wilkerson, who resisted therein, and to Catawba County for Hutton Bourbonnais, returnable 1 February, 1907. It was served on Hutton Bourbonnais 28 January, 1907. They did not appear, and the justice gave judgment for the plaintiffs on 1 February, 1907. Defendants afterwards appealed to the Superior Court. The defendants, Hutton Bourbonnais, alone appeal to this Court. The jury returned a verdict for the plaintiffs, and judgment was entered thereon.

In the Superior Court, the defendants demurred for misjoinder of causes of action as each plaintiff had a separate cause of action. The defendants Hutton and Bourbonnais contended here that the (266) action should be dismissed, as the justice entered judgment when the summons had not been served ten days before the day on which it was returnable, contrary to Revisal, sec. 1451. The irregularity in this respect was waived, as the defendants did not appear before the justice and ask for further time to plead, nor did they move before him to set aside the judgment, nor did they move in the Superior Court to dismiss, if that would have been a proper motion, but they entered a general appearance and demurred and, besides, have had full opportunity to plead to the merits and have the issues tried by a jury. The defect in the justice's proceedings was thereby waived or cured. Roberts v. Allman,92 N.C. 391; Wheeler v. Cobb, 75 N.C. 21. Section 1451 of the Revisal was evidently intended to afford the defendants a reasonable opportunity to appear and plead. The judgment was not void but irregular, or, at most, voidable. Guion v. Melvin, 69 N.C. 242; Strayhornv. Blalock, 92 N.C. 293.

The demurrer for misjoinder was properly overruled, as it appears from the summons and justice's return that the plaintiffs alleged that the debt was due to the plaintiffs jointly and not severally. If this was not true, the objection should have been taken by answer, for in passing upon the defendants' demurrer, we can consider only the allegations of the complaint. Revisal, sec. 477.

With regard to the declarations of Wilkerson, it may be said that the plaintiff, W. R. Laney, testified, without objection, that Hutton had told him that Wilkerson was working for Hutton Bourbonnais and, on cross-examination by the defendants, he further testified as fully in regard to the matter, and to the same effect.

The motion to nonsuit upon the evidence was properly overruled, as there was sufficient evidence to establish the plaintiff's claim. W. R. Laney testified that Hutton told him the debt was due and (267) would be paid.

We have examined the numerous exceptions and find no error in the rulings of the court. The exceptions not mentioned by us require no special discussion.

No error.

Cited: Bank v. Carlile, 174 N.C. 625.