Odom v. . Palmer

Devin, J. The plaintiffs’ motion to dismiss the petition or interplea on the ground that it did not state facts sufficient to show any right to the proceeds in question, treated as a demurrer ore tenus, was properly denied. A demurrer admits, for the purpose, the truth of the allegations of fact and challenges the right of the pleader in any view of the matter. In re Champion Bank and Trust Co., 207 N. C., 802. The interplea filed by permission of the court, and without objection, alleges that the fund in question was recovered in a suit by the heirs of John W. Odom; that it was decreed to be paid to the plaintiffs as heirs; that the land which was sold and from which the fund arises belonged to John W. Odom, and that the proceeds now in the hands of commissioners are subject to the payment of the debts of John W. Odom and the costs of administration, there being no other assets sufficient for that purpose. Judge Stack’s judgment (attached to the interplea) refers to plaintiffs as heirs of John W. Odom and recognizes the liability of the fund for payment of the debts of his estate. It is clear that the plaintiffs had no title to the land or to the fund from the sale thereof, except as heirs of their father, John ~W. Odom, and it therefore came to them charged with the payment of his debts. The fund is still intact and available to pay debts. C. S., 74, et seq.; Avery v. Guy, 202 N. C., 152; McLean v. Leitch, 152 N. C., 266. There was no exception entered to the order of the court permitting the administrators to set up this claim to the fund by interplea in the original action. Under the facts in this case the order was proper. It is the recognized policy and expressed purpose of our present system of procedure that all matters in a given controversy should, as far as possible, be settled in one and the same action. Guthrie v. Durham, 168 N. C., 573. The plaintiffs’ objection to the admission of the pleadings in the original action and in a former proceeding between the same parties *98 is without merit. Alsworth v. Cedar Works, 172 N. C., 17. Nor is the widow estopped now to assert her dower rights because of failure to do so in the original action. The question of dower was not involved in the suit against her individually to recover the land, nor did the judgment undertake to adjudicate the question. Chappell v. Surety Co., 191 N. C., 703. The defendant Fannie Dry Odom Palmer makes no claim for any dower interest in the fund represented by the forty-five per cent of the proceeds of sale of the lots, but for the value of her dower rights in the land sold by the commissioners under the decree of August, 1927, and in that proceeding she had asked that the value of her dower rights in the land therein decreed to be sold be paid to her absolutely out of the proceeds. This amount not having been paid in full, she sets it up now as. a debt against the estate. No statute of limitations is pleaded, nor would such a plea avail the plaintiffs under the facts of this case. Campbell v. Murphy, 55 N. C., 357. The plaintiffs excepted to the judgment, but there was no exception to any of the findings of fact, nor to any specific conclusion of law. In Buchanan v. Clark, 164 N. C., 56, Walker, J., uses this language: “Parties can have their causes tried by jury, by reference, or by the court. They may waive the right of trial by jury by consenting that the judge may try the case without a jury, in which event he finds the facts and declares the law arising thereon. His findings of fact are conclusive, unless proper exception is made in apt time that there is no evidence to support his findings or any one or more of them.” This statement of law is approved by Brogden, J., in Assurance Society v. Lazarus, 207 N. C., 63; McIntosh, N. C. Practice and Procedure, sec. 517. The Constitution of North Carolina, Art. IY, sec. 13, provides: “In all issues of fact joined in any court, the parties may waive the right to have the same determined by a jury; in which case the finding of the judge upon the facts shall have the force and effect of a verdict by a jury.” The case on appeal recites: “After argument of counsel on both sides, it was agreed that the judge might render judgment out of term and out of the district. The question of a jury trial was not mentioned.” In his judgment Judge Alley states: “It was agreed by counsel that the court might find both the facts and the law without the intervention of a jury, and that the court might take the papers and study same and enter judgment out of term and out of the district.” While the agreement of counsel is set out more fully in the judgment than in the “case,” there is no material 'difference nor contradiction. *99 Manifestly a jury trial would not have been possible under the agreement, nor was objection made to failure to submit the case to a jury. In the absence of suggestion that the facts as to the agreement were not correctly stated, the findings of the judge are conclusive. The facts found by the court below fully warrant the judgment. Affirmed.