Van Smith Building Material Co. v. Pender

91 S.E. 524, 173 N.C. 55, 1917 N.C. LEXIS 235

• Court: Supreme Court of North Carolina
• Decided: February 28, 1917
• Status: Published

Opinion

AlleN, J.

The motions of the plaintiff are predicated upon the idea that a verified complaint has been filed and that the defendant must, therefore, file a verified answer.

The statute (Rev., sec. 488), which provides that when “Any pleading is verified every subsequent pleading except a demurrer must be verified,” applies by its terms only to courts of record, and a court of a justice of the peace is not only not a court of record (Reeves v. Davis, 80 N. C., 209; Williams v. Bowling, 111 N. C., 296), but it is explessly provided that the pleadings in that court may be “written or oral.” Revised, sec. 1488.

If, however, it be conceded, as the plaintiff contends, that the statute (Rev., sec. 488) applies and that a verified answer must be filed in all cases when the complaint is verified, he cannot take advantage of the liosition, because he has not filed a verified complaint.

The paper called a complaint does not state the title of the cause, the name of the court, the name of the county, or the names of the parties, as required in complaints by section 467 of the Revisal, and is properly designated by the justice in his return as a “verified account,” which may be used as evidence under Revisal, sec. 1625. Nor is it verified as a complaint. Pell’s Revisal, sec. 489, and cases cited.

It follows that the oral plea of the defendant denying liability raised an issue wbieb could only be determined by a jury, and that tbe plaintiff was not entitled to have an additional pleading filed, nor to judgment.

Affirmed.