Kalte v. City of Lexington

Winborne, J. Upon the facts presented on this appeal tbe decisive questions are: (1) Did tbe court below err in consolidating tbe cases for tbe purpose of trial? (2) In an action in justice of tbe peace court on debt against a city, is tbe plaintiff required to file a verified com *781 plaint and set forth the allegations in compliance with C. S., 1330? (3) Was refusal of motion for judgment as of nonsuit error? We answer the first issue “No” and the second and third “Yes.” 1. A consolidation may be ordered where the plaintiff in the same right institutes several actions against the same defendant on several causes of action which he might have united in one, and a common defense is set up to all. Buie v. Kelly, 52 N. C., 266; Hartman v. Spiers, 87 N. C., 28. Other cases bearing upon the subject are: Wilder v. Greene, 172 N. C., 94, 90 S. E., 439; Ins. Co. v. R. R., 179 N. C., 255, 102 S. E., 417; Henderson v. Forrest, 184 N. C., 230, 114 S. E., 391; Blount v. Sawyer, 189 N. C., 210, 126 S. E., 512; Fleming v. Holleman, 190 N. C., 449, 130 S. E., 171; Rosenmann v. Belk-Williams Co., 191 N. C., 493, 132 S. E., 282; Trust Co. v. Green, 204 N. C., 780, 168 S. E., 529; Hewitt v. Urich, 210 N. C., 835, 187 S. E., 759. 2, 3. Ordinarily, it is correct to say that in actions brought in a court of a justice of the peace the parties have an election to plead either orally or in writing, but the conclusion does not follow in an action against a municipality — requiring verified complaint. O. S., 1330, provides in part that “every such action (against municipalities) shall be dismissed unless the complaint is verified and contains” the allegations therein specified. In McIntosh Prac. and Proc., page 369, it is said: “In certain proceedings a verification is required as an essential part of the pleadings— (among others) — in an action against a county or municipal corporation.” In Nevins v. Lexington, 212 N. C., 616, 194 S. E., 293, an action in the court of a justice of the peace in which written verified complaint was filed, this Court said that C. S., 1330, is applicable to that action. If the complaint in an action against a municipality must be verified in order to save it from dismissal, it follows that the pleading must be in writing and verified, regardless of the court in which the action is instituted. Ordinarily, in actions brought in the Superior Court or other court of record, where the pleadings are required to be in writing, the plaintiff may verify his complaint or not according to his election, but such election is not open to a plaintiff in an action against a municipality requiring verified complaint. Otherwise, C. S., 1330, would be without meaning. This statute applies to “every such action” against a municipality, without reference to the amount involved or the court in which the action is brought. The judgment below is Reversed.