Clayton v. . Jones

Supreme Court of North Carolina

Clayton v. . Jones

68 N.C. 497

CourtSupreme Court of North Carolina

DecidedJanuary 5, 1873

StatusPublished

Cited by3 cases

This text of 68 N.C. 497 (Clayton v. . Jones) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Clayton v. . Jones, 68 N.C. 497 (N.C. 1873).

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Opinion

Boyden, J.

This was a civil action upon a promissory note, which had been indorsed to the plaintiff by the payee, Smith. The complaint was verified. To this complaint the defendant demurred, and alleged in his demurrer “ that the complaint did not state facts sufficient to constitute á cause of action against the defendant, .for the reason that the complaint did not allege that Smith, the payee in said note, had-indorsed the same to the plaintiff for value received.”

The plaintiff’s counsel at the return term, moved 'for judgment upon the ground “ that no answer to the complaint had been filed, and that the demurrer was frivolous.” His Honor refused the motion, and declared his opinion to be “ that the demurrer raised an issue of law, which, under the statute suspending the C. C. P., could not be heard till the next term.” His Honor would have committed no error had the demurrer in fact raised an issue of law; but it was for his Honor to decide whether or not the demurrer did raise such issue. His Honor, we think, erred in holding that the demurrer raised an issue of law, for the reason that the grounds of the demurrer specified are plainly irrelevant and immaterial, and therefore frivolous. The 218th section of the C. C. P. provides that “ if a demurrer, answer or reply be frivolous, the party prejudiced thereby, upon a previous notice of five days, may apply to the Court or Judge thereof, either in or out of the Court, for judgment thereon, and judgment may be given accordingly.”

This notice of five days was provided for the decision of cases, as the law stood before the several statutes suspending the C. C. P. Since these acts of Assembly making civil actions returnable to the Court in term time, the five days notice of the motion is .unnecessary, as parties through their *499 counsel must take notice, at their peril, of all motions and steps in the cause, as under our old system, as has been decided at this term in the case of Stone v. Latham. His Honor should have allowed the motion, as the plaintiff was entitled to his judgment notwithstanding th'e sham demurrer, as in law it was wholly immaterial as far as the plaintiff’s rights were concerned whether he paid value for the note or not.

There was error in refusing the motion. There will be judgment in this Court for the debt and costs.

Per Curiam.

Judgment affirmed.

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Boyden, J.

This was a civil action upon a promissory note, which had been indorsed to the plaintiff by the payee, Smith. The complaint was verified. To this complaint the defendant demurred, and alleged in his demurrer “ that the complaint did not state facts sufficient to constitute á cause of action against the defendant, .for the reason that the complaint did not allege that Smith, the payee in said note, had-indorsed the same to the plaintiff for value received.”

The plaintiff’s counsel at the return term, moved 'for judgment upon the ground “ that no answer to the complaint had been filed, and that the demurrer was frivolous.” His Honor refused the motion, and declared his opinion to be “ that the demurrer raised an issue of law, which, under the statute suspending the C. C. P., could not be heard till the next term.” His Honor would have committed no error had the demurrer in fact raised an issue of law; but it was for his Honor to decide whether or not the demurrer did raise such issue. His Honor, we think, erred in holding that the demurrer raised an issue of law, for the reason that the grounds of the demurrer specified are plainly irrelevant and immaterial, and therefore frivolous. The 218th section of the C. C. P. provides that “ if a demurrer, answer or reply be frivolous, the party prejudiced thereby, upon a previous notice of five days, may apply to the Court or Judge thereof, either in or out of the Court, for judgment thereon, and judgment may be given accordingly.”

This notice of five days was provided for the decision of cases, as the law stood before the several statutes suspending the C. C. P. Since these acts of Assembly making civil actions returnable to the Court in term time, the five days notice of the motion is .unnecessary, as parties through their *499 counsel must take notice, at their peril, of all motions and steps in the cause, as under our old system, as has been decided at this term in the case of Stone v. Latham. His Honor should have allowed the motion, as the plaintiff was entitled to his judgment notwithstanding th'e sham demurrer, as in law it was wholly immaterial as far as the plaintiff’s rights were concerned whether he paid value for the note or not.

There was error in refusing the motion. There will be judgment in this Court for the debt and costs.

Per Curiam.

Judgment affirmed.

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Bluebook (online)

68 N.C. 497, Counsel Stack Legal Research, https://law.counselstack.com/opinion/clayton-v-jones-nc-1873.

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