Western Carolina Bank v. Atkinson

113 N.C. 478

Opinion

Buuwkll, J.:

In Hull v. Carter, 83 N. C., 249, it is said that “an answer should never be held frivolous, and judgment given in disregard of it, unless, as stated in some of the New York cases, it be so clearly and palpably bad as to require no argument or illustration to show its character, or, in other words, such as to be capable of being pronounced frivolous or indicative of bad faith in the pleader on bare inspection.” It cannot be said that this answer, on bare inspection, indicates bad faith in the pleader, for in the fourth paragraph it formally denies that the plaintiff is the owner and holder of the note sued on, and thus properly put him to proof of that fact, which is essential to his recovery. True, that fact may be established by the mere production of the note on the trial of the issue thus raised (Pugh v. Grant, 86 N. C., 39), but, by the rules of evidence under the pleadings in this action, that formal act must be done before the defendant is required to rebut the presumption of ownership which arises from the mere possession of the instrument. Pugh v. Grant, supra. Error.