Dempsey v. . Rhodes

Merrimon, J. (after stating the facts). The answer appears in the record as having been filed regularly at the appearance term — it was, however, in fact, by permission of the Court, filed in February, 1883, as of that term. It was competent to allow this to be done, though such practice ought not to be encouraged. It generally engenders dissatisfaction, sometimes serious irregularity and unnecessary contention. So that the answer had been on file with the permission of the Court, for two years next before the trial. The plaintiffs cannot be heard to say that they did not see it — they were before the Court, and were all that time charged with notice of what was done in the course of the action, and the papers pertinent to it on the file. It was their own neglect if they failed to see it. Every action is important — it requires prompt and orderly attention in the whole course of its progress, and the Court will not tolerate, much less encourage neglect of it by the parties to it. The careless litigant *125 must accept the consequences of his unnecessary default. University v. Lassiter, 83 N. C., 38, and cases there cited. It was insisted On the argument, that the answer could not be treated as having been filed at the appearance term, or at all, because the defendant had not given bond as required by the statute (C. C. P., §382; Bat. Eev., p: 238,) then in force. Nor had the Court made an order allowing the defendant to answer without giving such bond, as allowed by the same statute, §382a. This objection is without force, because, as allowed by the statute last cited, an attorney practicing in the court certified that he had examined the defendant’s case and was of opinion that the plaintiff was not entitled to recover, and the defendant made affidavit before the clerk that he was unable to give the bond, and the certificate and affidavit were placed on file with the answer among the papers in the action. This being done, the defendant had the right to answer, and it did not rest in the discretion of the Court to refuse to allow him to do so. Notice of such certificate aud affidavit was not necessary, and it may be questioned whether it is necessary in any case that the Court should make an order allowing the defendant, upon filing such certificate and affidavit, to answer, because he answered as of right under the statute. Deal v. Palmer, 68 N. C., 215; James v. Fortune, 69 N. C., 322; Taylor v. Apple, 90 N. C., 343. But if such order was necessary, and objection in that respect might have been made in apt time, it was unquestionably waived by the defendants. The certificate of counsel aud the affidavit of the defendant fully meet the requirements of the statute, and they and the answer, as we have seen, were on file without objection for two - years and until the trial. They must be treated as having waived the absence of any such order. Corn v. Stepp, 84 N. C., 599; McMillan v. Baker, 92 N. C., 110. 2. The answer of the defendant is informal, and particularly the relief specially demanded is not such as the court granted, nor is it such as the defendant is entitled to have; but it con *126 tains a prayer for general relief. No exception was taken on this account — certainly not in apt time. It in effect admits that the legal title to the land described in the complaint is in the plaintiffs; but it alleges with tolerable clearness, that the defendant contracted to purchase the land from John J. Brice for a stipulated price in the year 1874, and took from him his bond conditioned that upon the payment of the purchase money, he would convey the title to the defendant; that he paid a large part of the purchase money, but failed to pay the whole of it at the time the second note given for part of it matured; that it was then agreed, that Frank Brice would pay the balance of the purchase money, take the title from John J. Brice, and the defendant would pay the said Prank the sum advanced for him with interest, and when he paid the same Frank Brice would convey the title to the defendant; that the defendant paid the money due and more, to Prank Brice; that afterwards Frank Brice died leaving his will by which he devised the land in question to the plaintiffs, and they claim title to the land under that will. Some question was made on the argument as to whether it sufficiently appeared that it was alleged that the whole of the purchase money was paid to Frank Brice; but we think it is sufficiently alleged — the sums of money alleged to have been paid to him is more than the balance of the purchase money alleged to have been advanced by him, and there is a general allegation that the defendant paid him about $200 more than he owed him, as usurious interest. It is alleged sufficiently by the tenor of the answer, that John J. Brice conveyed the title of the land to Frank Brice, and the latter agreed in writing to convey the same to the defendant, although there is no specific allegation to that ■effect. The defendant thus manifestly — in effect he alleges an equitable .counter-claim — an equitable cause of action “connected with the subject of the action ” — the land — against the plaintiffs’ devisees .under the will of Frank Brice, who held the naked legal title to *127 the laud in question in trust for the defendant. The devisees, the plaintiffs, took nothing under the will hut the naked legal title, charged with the trust, and they hold it for the defendant just as the testator under whom they claim held it in his life time. The claim as alleged, exists in favor of the defendant and against the jjlaintiffs, and between the plaintiffs and defendant there may be had a several judgment in the action. The Code, §244. At law, under the common law method of procedure, the plaintiff would be eutitled to recover; the defendant, however, would have his right to assert his equity in a Court of Equity and compel the plaintiffs to convey the legal title to him. Under the Code method of procedure as it prevails in this State, the plaintiff may allege his legal causes of action, and the defendant may in his answer allege his equitable counter-claim, which is, in effect, a counter action on the part of the defendant against the plaintiff. The Code, §245; Pearsall v. Mayers, 64 N. C., 549; Johnson v. McArthur, Ibid., 675; Welburn v. Simonton, 88 N. C., 266; Clark’s Code, §99 et seq. 3. The counter-claim is not alleged merely as a matterof defence. The defendant seeks bv it substantial relief. The plaintiffs failed to file any reply to the material allegations of new matter in the answer constituting the counter-claim; they are therefore to be taken as true. The Code, §268; McKesson v. Mendenhall, 64 N. C., 286; Bonham v. Craig, 80 N. C., 224; Barnhardt v. Smith, 86 N. C., 473. 4. As “ every material allegation of new matter in the answer constituting the counter-claim” was, for the purpose of the action, to be taken as true, the defendant was entitled to such judgment as such allegations warranted. The Code, §249, provides that, “If the answer contains a statement of new matter constituting a counter-claim, and the plaintiff fail to reply or demur thereto, the defendant may move for such judgment as he is entitled to upon such statement, and, if the case require it, an order for an inquiry of damages by a jury may be made.” *128 The plaintiffs, however, contended that the defendant had not demanded proper relief, nor the judgment granted by the Court. And he did not specially, but he demanded generally, such relief as the Court could grant, and this was sufficient. Indeed, in the absence of any formal demand for judgment, the Court will grant such judgment as the party may be entitled to have, consistent with the pleadings and proofs. Dunn v. Barnes, 73 N. C., 273; Jones v. Mial, 82 N. C., 252; Knight v. Houghtailing, 85 N. C., 17. It is obvious that we cannot review the action of the Judge in refusing to allow the plaintiffs t.o file a reply at the trial. Whether he would or not, rested in his discretion, and his exercise of it cannot be reviewed here. The jury was improperly impaneled — there was no issue of fact for them to try; indeed, it does not appear in the record that any issue was submitted to them. What was called their verdict was immaterial, and went for nothing. The Court ought to have proceeded to give judgment upon the facts in the answer taken as true. The exceptions in respect to what, the Court said to and in the presence of the jury, are therefore groundless. The Court properly gave judgment in favor of the defendant for costs. When, in an action to recover possession of land, the defendant is allowed to defend without giving an undertaking to secure costs and damages to the plaintiff, he is not relieved from paying costs, if he shall be cast in the action, and he may recover costs, if he succeeds. The statute simply relieves him from giving the undertaking, and leaves him to pay or recover costs, just as if there was no such statute. Lambert v. Kinnery, 74 N. C., 348; Justice v. Eddings, 75 N. C., 581. Accepting the material allegations of new matter in the answer constituting the counter-claim as true, we are of opinion that the judgment of the Court, was substantially correct, and it must be affirmed. No error. Affirmed.