Richert v. James Supply Co.

Adams, J. The summons was served by publication on the defendants J. 0. Eiehert and the James Supply Company, and no objection is made as to the sufficiency of the service.' A verified complaint was filed at the time the summons was issued; an answer was filed by the James Supply Company, but not by its eodefendant. The clerk gave judgment by default final against J. C. Eiehert, and transferred the case to the civil docket for trial of the issues raised by the answer of the James Supply Company. Neither defendant excepted to the judgment against Eiehert, or appealed therefrom; but after the trial in the Superior Court had begun, in fact, after the jury had been empaneled, the James Supply Company made a motion to strike out the judgment rendered by -the clerk against J. 0. Eiehert, and it now insists that the judgment was void. Its argument is based upon an alleged want of'jurisdiction. It contends that the action was instituted to reform a deed on the ground of mistake, and to engraft a parol trust upon a conveyance of the fee, and that a suit involving these equitable elements is not within the purview of any statute, authorizing the clerk to render judgment by default final. Laws 1921, Extra Session, ch. 92. It contends, also, that the answer of the supply company raised issues upon which the rights of both defendants depended, and that by operation of law the jury must determine these issues as between the plaintiffs and the defendant Eiehert. The appellant’s conclusion is that the clerk’s judgment is void, or, if only irregular, that the judgment is for this reason open to its 'attack. Quite a number of cases are cited which in our view of the controversy need 'not be minutely examined. The question of irregularity may be dismissed for this reason: When the plaintiffs introduced the clerk’s judgment against Eiehert, the judge sustained the appellant’s objection on the ground that the evidence was immaterial to the issue and “excluded the entire judgment.” This ruling, in effect, declared the judgment void as to the defendant who objected. True, the court stated in the presence of the jury that judgment had been rendered against Eiehert, and this, the appellant contends, operated to its prejudice; but the posi *14 tion, we apprehend, is based on sentiment rather than law, and in any event was made harmless by the instruction that as to the appellant the evidence was excluded, because it was immaterial. We do not regard Tennant v. Bank, 190 N. C., 364, as authority for the position that the issue must have been answered by the jury as against the defendant Richert. If through indifference or collusion Richert saw fit to file no answer, the appellant was in no wise bound by his action or by the judgment against him; and herein lies the distinction between this case and Tennant’s. Nor can we concur with the appellant in saying that there was a fatal variance in the pleadings and the proof — such discrepancy between the complaint and the issue submitted as necessarily invalidates the judgment. The deed from Elizabeth Walden to J. C. Richert for the lot in question was executed 24 May, 1911; the plaintiffs introduced another deed signed by Elizabeth Walden on 7 October, 1919, purporting to be the release of a mortgage executed by J. C. Richert on 25 May, 1911, to secure the payment of $2,200. The complaint refers to a deed from Mrs. Walden to Richert dated 8 October, 1919, and the clerk’s judgment recites the execution of this deed through mistake. The issue submitted to the jury has reference to the deed of 24 May, 1911. The appellant contends that the clerk’s judgment leaves the latter in full force and effect and purports to set aside the deed releasing the mortgage. To this there seems to be more than one answer. If the position be admitted, how can it avail the appellant? Upon the issue joined between it and the plaintiffs the jury found that the parties intended that the title to the lot should go to Mrs. Richert by the deed hearing date 24 May, 1911, and it was thereupon adjudged that J. C. Richert held the deed as trustee for his wife. The verdict and judgment preclude a sale of the lot as the property of J. C. Richert, and with this estoppel operating against it the appellant has no legal interest in a controversy between the plaintiffs and the alleged trustee as to the verbal accuracy of the clerk’s judgment. We think, however, that there is intrinsic evidence of a clerical error as to the date of the deed both in the complaint and in the judgment of the clerk. In reference to the identity of the land described in the complaint, in the two deeds, and in the warrant of attachment there can he no doubt; it is admitted that in each instrument the description is the same. We are therefore of opinion that the first and second assignments of error must be disallowed. The third and fourth assignments embrace an exception to the issue submitted and another to the court’s refusal to submit the issues tendered by the appellant. It is insisted that there was error in permitting the plaintiffs to introduce in evidence for the purpose of attack the deed dated 24 May, 1911, because, as we understand, the complaint sets *15 out tbe deed dated 7 October, 1919, and not tbe deed of earlier date. It is said tbat there is no allegation in tbe pleadings in reference to tbe former deed, and tbat proof without allegation is as fatal as allegation without proof. Tbe complaint, it is obvious, proceeds upon tbe theory tbat when Mrs. Walden conveyed tbe lot it was tbe intention of tbe parties to vest tbe legal title in Mrs. Richert. It is alleged tbat tbe latter paid tbe whole of tbe purchase money, tbat a deed bad been made to her and bad been held in escrow pending her payments; tbat it bad been lost and tbe execution of another bad become necessary. Tbe allegations were evidently intended to apply to tbe original conveyance and not to tbe release of tbe mortgage. Tbe object of tbe prevailing system of pleading is to have actions tried upon their merits, and to this end pleadings are to be construed liberally and every intendment is to be adopted in behalf of tbe pleader, however inartificial tbe allegations may be, or however defective or redundant. Brewer v. Wynne, 154 N. C., 467; Hoke v. Glenn, 167 N. C., 594; S. v. Trust Co., 192 N. C., 246. Considering tbe complaint in its entirety we conclude tbat tbe mere recital of tbe release instead of tbe deed first conveying tbe legal title is not fatal to tbe judgment or such error as calls for a new trial on behalf of tbe defendant; and for this reason tbe third and fourth assignments are overruled. It follows tbat tbe motion to dismiss tbe action as in ease of nonsuit was properly denied. Tbe remaining assignments are formal. We find No error.