Brogden v. . Henry

83 N.C. 274

Opinion

Ashe, J.

We entirely concur in the ruling of His Honor.

The answer of Henry was neither irrelevant nor frivolous. A frivolous answér in the Code is one which is manifestly impertinent as alleging matters which, if true or not, do not affect the plaintiff’s right to recover. “ When the answer is put in in good faith and is not manifestly impertinent, 'the defendant is entitled to have the facts either admitted by a demurrer or passed upon by a jury. Erwin v. Lowery, 64 N. C., 321. We have no reason to suppose the answer in the case was not filed in good faith, for it raises á very serious and important question, one that has been decided at this term -in support of the answer of the defendant. ‘See Welfare v. Thompson, at this term.

While we hold the ruling of the judge in refusing to strike out the answer of the defendant and grant judgment was not erroneous, we think it very questionable whether the plaintiff had the right of appeal.

Let this be certified, &o.

No error-. -Affirmed.