Vass v. . Brewer

29 S.E. 352, 122 N.C. 226, 1898 N.C. LEXIS 231

• Court: Supreme Court of North Carolina
• Decided: March 15, 1898
• Status: Published

Opinion

Faikcloth, C. J.

This action is on a note payable to plaintiff’s testator and endorsed by the defendant Brewer. The defendant, not denying the execution of the note nor his endorsement thereon, answering, says that in another action in the same Court (Belvin v. The Raleigh Paper Co., to which the plaintiff is not a party) a referee has reported that defendant is liable for the same debt as endorser, and that certain property involved in the Belvin suit should be applied before plaintiff is entitled to judgment in this action. Whether the referee’s report will be confirmed or not and whether any judgment will be rendered thereon does not appear, nor is it so alleged, and, whether the matter pleaded is true or not, it does not concern the plaintiff, who is not a party thereto. The plaintiff’s cause of action is admitted and the special plea does not raise a material issue and the answer was properly held to be frivolous.

A frivolous answer is one that raises no issue or question of fact or law pertinent or material in the action. Weil v. Uzzell, 92 N. C., 515. The answer being of no effect the motions of defendant cannot be allowed and plaintiff was entitled to judgment on his verified complaint. Code, 388.

Affirmed.