Cooper v. Evans

Hoke, J., after stating the case: It is chiefly objected to the validity of the proceeding below ’that the court was without power to enter judgment on the note, when it was not mentioned in the complaint, the same only containing direct averment of ownership and an unlawful withholding of the possession, without more. It may be that the plaintiff, in strictness, should have set forth his special interest in the property (Bevisal, sec. 791), but, conceding that on allegations and direct denial of ownership, the issue should be determined as the parties have seen fit to present it in their pleadings, we are of opinion that no such position is open to defendant on this record, wherein it appears that on allegations of ownership by plaintiff, defendant has answered, setting out the entire transaction, the purchase of the mule for $240, payment of $100 on the purchase price, a mortgage to secure the same, the alleged false warranty, breach, and consequent damage. The plaintiff thereupon files a reply, admitting the note, payment, and mortgage, and joins issue on the warranty, breach, and consequent damage. These disputed questions having been settled by the verdict, we have, then, by the admissions of the parties and the findings of the jury, the entire facts determinative of the controversy, and it was right and proper to enter judgment in full adjustment of the litigation between them. It has been said that “Both the spirit and letter of our present Code designs and contemplates that all matters growing out of or connected with the same controversy should be adjusted in one and the same action.” Smith v. French, 141 N. C., 1, 6, 10. And not only is this true with us as a matter of general policy, but in cases of this same character there are direct decisions approving the course pursued in the present instance. Smith v. French, supra; Taylor v. Hodges, 105 N. C., 344; Griffith v. Richmond, 126 N. C., 377. In the last case it was held that where the action is brought to recover property to secure a debt, in order to avoid circuity of action, when the [414] debt is denied, the issues and judgment should cover the whole case, including the balance due on the debt. There is no error, and the judgment entered is affirmed. No error.