Theo. A. Kochs Co. v. Jackson

72 S.E. 382, 156 N.C. 326, 1911 N.C. LEXIS 182

• Court: Supreme Court of North Carolina
• Decided: October 18, 1911
• Status: Published

Opinion

AlleN, J.,

after stating the case: The demurrer ore tenus to the complaint was properly overruled. It was an objection to the complaint upon the ground of defect of parties, or that the plaintiff did not have the legal capacity to sue, and such objections are waived, unless taken by a written answer or demurrer, under the provisions of section 478 of the Revisal.

Besides, it does not appear on the face of the complaint that there is a defect of parties, or an incapacity to maintain the action, and the defendants do not deny in their answer the execution of the chattel mortgage to secure the notes, and they have executed a replevy bond, payable to the plaintiff, by means of which they retain the property pending the action.

A similar question was raised in Stanly v. R. R., 89 N. C., 331, in which the Court says: “The appearance and plea to the merits or answer is a concession of the sufficiency of the designation of the person, natural or artificial, and if intended to be disputed it should be, under the present practice, by answer.”

The defendants rely on Heath v. Morgan, 117 N. C., 505, as an authority in favor of their position, but an examination of the opinion in that case shows that the Court acted upon the assumption that the plaintiff was a partnership, which does not appear in this case, and also that a demurrer was filed, upon the ground that the names of the partners were not stated in the summons or complaint.

Tbe defendants acquired no title as against tbe plaintiff, by purchase at tbe execution sale.

Tbe execution was against Jackson, wbo bad executed to tbe plaintiff a chattel mortgage, which was duly registered.

“Tbe execution is issued by tbe clerk as a matter of course upon tbe judgment, and, under it, tbe property levied upon under tbe attachment is sold (if liable to sale), and what title tbe purchaser gets will be determined after the execution sale, for tbe purchaser buys only tbe right of tbe defendant in tbe attached property, as in all other sales under execution.” Electric Co. v. Engineering Co., 128 N. C., 201.

We find

No error.