Coin Machine Acceptance Corp. v. Pillman

69 S.E.2d 563, 235 N.C. 295, 1952 N.C. LEXIS 385

Opinion

DenNy, J.

The defendant interposed a demurrer ore tenus in this Court on the ground that the complaint does not state facts sufficient to constitute a cause of action against the defendant.

Among the grounds upon which the defendant contends the demurrer should be sustained is the fact that the complaint does not allege that the plaintiff is the owner of the note or notes secured by the conditional sales agreement. As a matter of fact, it does not appear on the face of the complaint that any note or notes were executed in connection with the conditional sales agreement upon which the action is bottomed. The demurrer is without merit and will not be sustained. However, the plaintiff may desire to recast its pleadings so as to allege that it is the owner and holder for value and in due course of any note or notes secured by the conditional sales agreement.

The defendant presents a more serious question by his exception to the order of compulsory reference. The relief which the plaintiff seeks in the instant action and the issues raised on the pleadings, are not such as to authorize a compulsory reference within the purview of G.S. 1-189. Alston v. Robertson, 233 N.C. 309, 63 S.E. 2d 632.

The plaintiff contends, however, that the court may, in the exercise of its equitable powers, order a reference irrespective of the provisions contained in G.S. 1-189, citing North Carolina Practice and Procedure by McIntosh, section 525, page 567. Even so, there is no equitable relief involved in this action to sustain such an order. The defendant is entitled to a new trial and it is so ordered.

N ew trial.