Wilson v. . Batchelor

108 S.E. 355, 182 N.C. 92, 1921 N.C. LEXIS 184

Opinion

Walker, J.,

after stating tbe case: Tbe plaintiff’s position is, tbat tbe defendant bas not alleged in bis counterclaim tbat tbe plaintiff bad promised to pay bim tbe sum. of $900 for tbe year 1916, but tbat be would raise bis salary if there was an increase in tbe business, and tbat there was a large increase, which reasonably entitled defendant to a salary of nine hundred dollars, but we are of tbe opinion tbat tbe oral pleadings contain a sufficient allegation. Tbe pleadings were somewhat informal, it being an appeal from a magistrate, but in tbe Superior Court tbe following entry was made in tbe record, as appears: “Tbe defendant admits tbat tbe plaintiff’s account as introduced is correct, except tbe salary credits, tbe defendant claiming tbat be is entitled to a credit of $800 for 1915 and $900 for 1916, instead of $720 for 1915 and $800 for 1916.” This gave tbe plaintiff fair notice of tbe nature of defendant’s demand, and it was substantially a more definite statement of tbe latter’s counterclaim.

We must construe tbe pleadings and proceedings liberally, and not allow justice to fail because of any mere informality or irregularity, especially when we are dealing with pleadings before justices of tbe peace. “Pleadings (before a justice) are not required to be in any particular form, but must be such as to enable a person of common understanding to know what is meant.” C. S., 1500 (Rule 7), 1 vob, 669. We said in Smith v. Newberry, 140 N. C., 385, at page 387, tbat large power of amendment is vested in tbe Superior Court, limited only by tbe condition tbat tbe amendment show a cause of action with tbe jurisdiction of tbe justice. Mfg. Co. v. Barrett, 95 N. C., 36; Planing Mills v. McNinch, 99 N. C., 517. If tbe plaintiff bad so desired, be might have called upon tbe defendant to make bis counterclaim more specific, either in tbe justice’s court or after tbe case reached tbe Superior Court upon appeal. Rev., 496; cases cited in Clark’s Code, sec. 261. In tbe absence of any more definite pleadings or any motion to make them so, bis Honor properly submitted tbe issue upon tbe cause of action which seemed to' be, and, as tbe jury found, was sustained by tbe evidence. And to tbe same effect is Turner v. McKee, 137 N. C. (Anno. Ed.), 257. While tbe complaint, as it was briefly noted on tbe justice’s docket and return to appeal, may state merely tbat if, in 1916, there was an increase in tbe business over tbat of 1915, tbe salary would be raised, tbe plaintiff made bis promise more definite after be learned wbat tbe increase was by fixing $900 as tbe amount of tbe salary, and throughout tbe trial be was apprised of tbe true claim made by tbe defendant. There is no legal merit in this exception to tbe charge of tbe court tbat if tbe jury found tbat tbe plaintiff bad promised to pay defendant $900 for tbe year 1916, they should allow tbe latter tbat amount, and deducting plaintiff’s claim of $126.19 from tbe balance due defendant on bis salary, calculated on tbat basis, which was $190, their verdict would be for tbe ultimate balance, which is $53.81.

Tbe plaintiff'inqiiired of tbe jury, before they were impaneled, if any one of them bad retained tbe counsel for tbe defendant in this case, in any pending cause, and received no answer. After tbe verdict was returned defendant moved for a new trial because tbe said counsel bad been retained by one of the'jurors in a pending cause, and such was tbe fact. Tbe motion was overruled, and properly so. We held in S. v. Maultsby, 130 N. C., 664 (opinion by tbe present Chief Justice), tbat a motion to set aside tbe verdict on account of relationship between tbe prosecuting witness and a juror, which was discovered after verdict— even if such relationship is ground of objection, as to which it is not necessary to decide — rested in tbe discretion of tbe trial court, and its refusal is not reviewable on appeal. This has been held where tbe relationship between a party and a juror is not discovered until after verdict. Spicer v. Fulghum, 67 N. C., 18; Baxter v. Wilson, 95 N. C., 137. Tbe same ruling has been made where, after verdict, tbe juror was ascertained to be incompetent because a minor (S. v. Lambert, 93 N. C., 618), or not a freeholder (S. v. Crawford, 3 N. C., 298), or an atheist (S. v. Davis, 80 N. C., 412), or a nonresident (S. v. White, 68 N. C., 158), or for other causes, see S. v. DeGraff, 113 N. C., 690, and S. v. Council, 129 N. C., 517, and cases there cited. And in S. v. Perkins, 66 N. C., 126, at page 128, tbe Court said by Pearson, C. J.: “It was tbe misfortune of tbe defendant tbat neither be nor bis counsel bad been sufficiently on tbe alert to enable them to find out tbe fact in ‘apt time’ to make it cause of challenge, tbat one of tbe jurors was on tbe grand jury when tbe bill was found. This might have been grounds for bis Honor in tbe court below to grant a new trial if be bad any reason to suspect unfairness on tbe part of tbe prosecution, but all suspicion of tbat kind was put out of tbe question, for it was stated by tbe juror, ‘if be was on tbe grand jury be bad forgotten it when be was put on tbe petit jury.’ How far this was satisfactory to bis Honor was a matter for him, but we will say tbat we entirely concur in bis conclusion. After a defendant bas taken bis chances for an acquittal tbe purposes of justice are not subserved by listening too readily to objections tbat were not taken in ‘apt time.’ ” And so in S. v. Patrick, 48 N. C., 443, tbis Court by Nash, C. J., beld tbat it is too late, after a juror bas been taken and accepted by tbe prisoner, and bas served on tbe trial, to except to bim for incompetency, and tbis was said, in a trial for a capital felony to be tbe law, even tbougb tbe objection to tbe juror, if taken at tbe proper time, would bave been allowed as a good challenge for cause. In all legal proceedings, it was said, there is an apt time for every step in tbe proceeding, and every objection or privilege must be made or claimed at tbe proper time, or tbe party making it will be considered as having waived it. Briggs v. Byrd, 34 N. C., 377. Tbe ease df S. v. Davis, 80 N. C., 412, is an instructive one on tbis point. It was there beld (opinion by Ashe, J.), tbat tbe objection to a juror after verdict came too late, and tbat learned Justice said: “It is well settled by English authorities, sanctioned by tbe uniform practice of centuries and by numerous decisions in tbis State, tbat no juror can be challenged by tbe defendant without consent after be bas been sworn, unless it be for some cause which bas happened since be was sworn. Tbe challenge propter defectum should be made as tbe juror is brought to tbe book to be sworn and before be is sworn; if not then made tbe defendant waives bis right of challenge.” S. v. Seaborn, 15 N. C., 305; S. v. Perkins, 66 N. C., 126; S. v. Lamon, 10 N. C., 175; S. v. Griffice, 74 N. C. 316; S. v. Patrick, supra; 1 Whar. Cr. L., 472; Joy on Jurors, sec. 10; Hawkins P. C., ch. 43, sec. 1; Hale P. C., 274. And in conformity to this, rule of practice is tbe ancient formula used by clerks, both in England and in tbis country, in their address to prisoners before tbe jurors are drawn: • “Those men tbat you shall bear called and who personally appear are to pass between our sovereign (or tbe State) and you upon your trial of life and death; if, therefore, you will challenge them or any of them, your time is to speak to them as they come to tbe book to-be sworn and before they are sworn.” It there was further beld tbat “where tbe ground of objection to a juror existed at tbe time .he was sworn, but was not discovered until after verdict, tbe court may in its discretion allow tbe challenge and grant a new trial. Its refusal to do so-is not reviewable.” To tbe same effect are tbe following cases: S. v. Lipscomb, 134 N. C., 689; S. v. Lambert, 93 N. C., 580; S. v. Parker, 132 N. C., 1014; S. v. Perkins, supra, and Spicer v. Fulghum, 67 N. C., 18, which is directly in point. In tbe last cited case it was beld tbat “where tbe plaintifPs counsel, before tbe jury was impaneled, requested tbat any juror in tbe box who was related to any one of tbe defendants by blood or marriage should retire, and no juror retired or replied:. Held, that it was not error for the judge to refuse to grant a new trial, because after -verdict and judgment it was ascertained that a juror was connected with one of the defendants, it being a matter of discretion,” citing S. v. Perkins, 66 N. C., 126.

There is no suggestion in this case of bad faith or corruption on the part of the juror, whose conduct is in question, or that plaintiff sustained any damage by his silence when the inquiry was made. For all that appears, he may have suffered no prejudice. In S. v. Parker, 132 N. C., 1014, a boy not under ten years of age had drawn the venire. The court, in the absence of bad faith or corruption, refused to set aside the verdict.

The other exceptions are merely formal.

No error.