Little v. . Rhyne

ClaRKSON, J. At the close of plaintiff’s evidence, on motion of defendants, the court below allowed defendants’ motion for judgment as in case of nonsuit. C. S., 567. In this we think there was error. The plaintiff alleged in her complaint: “That E. E. Little, late of Iredell County, North Carolina, died intestate on-or about 25 January, 1933, and that the plaintiff Lillian B. Little, administratrix of the estate of E. E. Little, was duly appointed as such by the clerk of Superior *433 Court of Iredell County, North Carolina, on 31 January, 1933, and is now in the active discharge of her duties as such administratrix.” The defendants in their answer say: “That the allegations contained in the first paragraph of the complaint are true.” The amended answer of Mrs. C. L. Rhyne states: “That paragraph 1 of the complaint is true and admitted.” N. C. Code, 1935 (Michie), section 543, is as follows: “Allegations not denied, deemed true. — Every material allegation of the complaint not controverted by an answer, and every material allegation of new matter in the answer, constituting a counterclaim, not controverted by the reply is, for the purposes of the action, taken as true. But the allegation of new matter in the answer, not relating to a counterclaim, or of new matter in reply, is to be deemed controverted by the adverse party as upon a direct denial or avoidance, as the case requires.” N. O. Practice and Procedure in Civil Oases (McIntosh), pp. 366-7, is as follows: “The material facts are those alleged in the complaint, and which the plaintiff must prove in order to establish his cause of action, and, when one of these facts is not denied in the answer, it is as effectual as if found by a jury; and it is not necessary to introduce the pleadings in evidence to show that there was no denial. Where the complaint alleges a material fact upon information and belief, and the answer admits such allegation, it is an admission of the facts alleged, and not simply of the information and belief. . . . For determining the cause of action or defense, and the material facts which are controverted, each party is bound by his pleading, as a conclusive or judicial admission, and it is not a question of evidence.” West v. A. F. Messick Gro. Co., 138 N. C., 166; Leathers v. Blackwell Durham Tob. Co., 144 N. C., 330; Page v. Life Ins. Co. of Va., 131 N. C., 115; Adams v. Beasley, 174 N. C., 118. The defendants contend: “That the plaintiff should have introduced evidence to the jury and to the court showing that she was the duly appointed and qualified administratrix of the estate of E. E. Little, deceased, and having failed to do so, the court was entirely right in granting the motion of nonsuit at the close of plaintiff’s evidence. However, if the court should be of the opinion that when the allegations of the complaint are admitted, or are not denied, that no proof need be offered as contended by the plaintiff in this action, then we call the court’s attention to the fact that the plaintiff did not allege in the complaint that the plaintiff was the duly appointed and qualified adminis-tratrix of the estate of E. E. Little; and, of course, was not admitted in the answer.” It goes without saying that plaintiff must be the duly appointed and qualified administratrix of the estate of E. E. Little. We think the *434 allegations in tbe complaint admitted in tlie answers sbow tbis. Tbe plaintiff alleges that sbe was “duly appointed,” and goes further and alleges, “And is now in tbe active discharge of her duties as such admin-istratrix.” Liberally construed, as our pleadings are, we think tbis language implies that sbe “qualified.” Tbe contention of defendants is too technical, and cannot be sustained. For tbe reasons given, tbe judgment of tbe court below is Reversed.