108 N.C. 218 | N.C. | 1891
Lead Opinion
The defendant moves in this Court to dismiss the action, for that the complaint does not state facts sufficient to constitute a cause of action. It appears on the face of the. complaint that the defendant’s testatrix, a married woman, executed her simple promissory note to the plaintiff in the sum of four hundred dollars, and that she died “ possessed of real and personal estate, leaving a will in which the defendant was appointed executor.” There is an entire absence of any allegation showing that the contract was such as she was by statute competent to make, nor is there the slightest intimation of any circumstances showing that the indebtedness was charged or is chargeable upon her separate estate. Indeed, there .is no pretence whatever of such a charge, and the prayer is for a judgment in per-sonam.
Very soon after the adoption of the present Constitution, and the passage of what is known as the “Married Woman’s Act,” chapter'42 of The Code, it became the duty of this Court to determine the character of the statutory separate estate of a feme covert, and the manner in which it could be charged with her executory contracts. In a few of the States where similar statutes had been passed it was held that their effect was to remove the common law disability of coverture, and to enable the wife to contract in all cases as if she were a feme sole, except where expressly prohibited. In a majority of the States the opposite view was taken, and this view, after much deliberation, was adopted by our Court in Pip-pen v. Wesson, supra. This case settled the fundamental principles of the law of married women in North Carolina in reference to the constitutional and statutory provisions above mentioned, and its authority, so far from being questioned, has been uniformly recognized and approved by the repeated d< cisions of the Court. .The doctrine of the case is well stated by Ruffin, J., in his carefully considered opinion in Dougherty v. Sprinkle, 88 N. C., 300, in which that learned Justice discusses the manner in which the engagement,of married women may be enforced. He says: “Nor was there
In Pippen v. Wesson, the plaintiff sued upon a promissory note signed by the husband and wife, and the coverture appeared upon the face of the complaint. There was, as in our case, no allegation showing that the contract was of such a character as to fall within the exceptions of the statute; nor did there appear am- circumstances by which the separate estate was chargeable. The feme defendant demurred on the ground that the complaint did not state facts sufficient to constitute a cause of action, and the Court, after stating that the complaint should have contained the essential allegations above'mentioned, proceeds as follows:- “In
The demurrer was sustained, and thus we have a case directly in point against the contention of the plaintiff. After this express decision upon the very question before us, it is quite difficult to understand how this Court is at liberty to go to the extraordinary length of presuming the existence of the very circumstances which it has, in the most unequivocal terms, declared essential to be alleged. The cases cited from New York, even if they could be recognized as control ing authorities in this State, do not support the position of the plaintiff. In those cases the coverture did not appear upon the face of the complaint, and, therefore, was not demurrable. Where the .question, however, did arise, the Court of Appeals of that State (before the Act of 1884, removing the disability of coverture except as to contracts between husband and wife) ruled precisely as this Court did in Pippen v. Wesson. In Broome v. Taylor, 76 N. Y., 564, the Court said : “ If this complaint had not shown that the defendant Helen was a married woman', it would have been good against her; and in that case, in order to avail herself of the defence of coverture, it would have been ueees-ary for her to set it up in her answer. But the complaint shows that the bond is the obligation of a married woman,, and there is no allegation showing that it was given for any purpose that would make it binding upon her. As to her, the bond is prima facie a nullity, and hence the complaint does not show a cause of action against her.” In view of these authorities, it cannot, we think, for a moment be questioned that the complaint’in this case does not state a cause of action. The proposition is so very plain that nothing but the earnest
It is further insisted, on the authority of Vick v. Pope, 81 N. C., 25 ; Newhart v. Peters, 80 N. C., 166; Nicholson v. Cox, 83 N. C., 48, and Johnston v. Cochrane, 84 N. C., 446, that cov-erture must be pleaded. This is undoubtedly true, for where the di-ability does not appear upon the face of the complaint, the plea must, of course, be by way of answer, as otherwise the fact of coverture can never be known.
In the present case the disability appears from thecomplaint, and the plea of coverture, even had it been necessary, has, from the beginning, been insisted upon by way of demurrer. We^ suppose that it will hardly be contended that a demurrer in such a case is not a pleading within the principle of the above mentioned cases. The Code, §§ 238, 239; Estes’ Pleadings, 3068; Oliphant v. Whitney, 34 Cal., 25; Furniss v. Ellis, 2 Breck. & Marsh., 14. Now, if no cause of action be stated, it is well settled that this objection aud the objection to the jurisdiction may be made either by written demurrer or demurrer ore terms. “ As to the two exceptions specified, there cau be,” says MerrijioN, J., “ no waiver, and in these respects objections may be made at any time. In such cases there is an absence of anything to which the jurisdiction of the Court can attach. Love v. Commissioners, 64 N. C., 706; Tucker v. Baker, 86 N. C., 1;” Johnson v. Finch, 93 N. C., 205. In the face of this very plain declaration of the Court, it is insisted that the defendant can waive the objection, and that he cannot make it at any time. The manner in which this strange result is reached is said to be by way of estoppel, growing out of a ruling at some previous term, in which the Court overruled a demurrer and gave the defendant leave to answer over. The demurrer was written, and the ground assigned was that, as the defendant’s testatrix was a married woman at the time of the execution of the note, the same was void, and that the plaintiff could not recover. The
Again, we have held that it is the duty of this Court to inspect the whole record, and to pronounce such judgment as in law should be rendered. Thornton v. Brady, 100 N. C., 38. Now, if a complaint does not state a cause of action this rule must be applied, and this could not be done if the expressions used in Wilson’s case are to be followed in all instances. It is very evident that the rule there stated had reference to the practice in the Superior Court alone, and was not intended to apply to motions made in this Court, where the power is universally recognized and acted upon, and this without reference to the ruling below.
It is said that the Court should not dismiss the action upon motion, but that the defect should be taken advantage of by demurrer. If we are not to reject the overwhelming weight of authority to the effect that this complaint does not state facts sufficient to constitute a cause of action, and that the objection cannot be waived and may be made by written demurrer or demurrer ore terms (Tucker v. Baker, 86 N. C., 1; Pescud v. Hawkins, 71 N. C., 299), then it must follow that the suggestion is unfounded. Such a demurrer, written or ore tenus, is as strong a plea of coverture as can well be imagined, and it matters not at what stage of the action it is made nor what other pleas may have been filed. It is very true that if no demurrer had been interposed and the case had been tried upon its merits, the evidence sustaining issues embodying the essential circumstances, the Court below (The Code, § 273), and even this Court, upon motion, might have allowed an amendment conforming the pleadings to the facts proved, and refused to dismiss. But nothing of the kind appears here. In fact the case has never been tried upon its merits, but upon the alleged legal insufficiency of the com
While this disposes of the appeal, we will add that we are clearly of the opinion that oral testimony is not admissible to show the grounds upon which the preceding Judge placed his ruling. The demurrer was in writing, and we cannot look beyond it and the judgment.
The principle which admits such testimony in aid of a record pleaded as an estoppel, where such record fails to disclose the precise point on which the case was decided (as in Yates v. Yates, 81 N. C., 397), has no application to rulings upon written demurrers.
We will also remark that we do not concur in the proposition of the intelligent counsel that an executor cannot plead the coverture of his testatrix. This would be practically charging her estate with debts for which she was not liable in her life-time. The case of Newhart v. Peters, 80 N. C., 167, simply decides that this plea cannot be interposed by one wrho has no interest in the subject-matter of the suit and who cannot be affected by its result. The action must be dismissed.
Dissenting Opinion
dissenting: I think this Court ought not to dismiss this action upon the ground that the complaint fails to state facts sufficient to constitute a cause of action. The complaint did state a cause of action, and the Court might and would have given judgment for the plaintiff if the defendant had not pleaded, or in case he failed to plead, the coverture of his testatrix at the time she executed the note sued upon. It is settled that the plaintiff may have judgment against a married woman upon a note or alleged indebtedness of any kind executed or incurred while she ■was such married woman, unless she pleads her coverture. That is a defence she may or may not avail herself of, and she must plead it. Vick v. Pope, 81 N. C., 22; Neville v.
Hence, if a marriel woman should simply plead in a proper case that she did not execute the note sued upon, or that she had paid the same, or that it was barred by the statute of limitations, and the plea should be determined against her, the plaintiff would clearly be entitled to judgment, as she did not plead her coverture. And if on the trial of such plea, either party should assign error as to some ruling of the Court, and after final judgment adverse to him or her, he or she should appeal to this Court, the latter could not ex mero mofo, or upon motion of the feme defendant, dismiss the action upon the ground that the complaint failed to state facts sufficient to constitute a cause of action, because, it did sufficiently state a cause of action, in the absence of the defence of coverture properly pleaded.
In this case, for the reasons stated above, the Court below could not have dismissed the action for the cause last above mentioned, if the defendant had not availed himself of the defence of the coverture of his testratrix by demurrer or answer, and for the like reason, upon appeal in such case, this Court could not upon motion dismiss the action.
A mere motion to dismiss the action in such case is not sufficient, because in the absence of the coverture pleaded the complaint would be sufficient to entitle the plaintiff to judgment.
In this case the defendant pleaded by his answer the cov-erture of his testatrix. On the trial he assigned error as to certain rulings of the Court below, and after final judgment adverse to him he appealed to this Court. This Court should consider and dispose of the assignments óf error. It cannot properly grant the motion to dismiss the action upon the ground that the complaint fails to state facts sufficient to constitute a cause of action, because, simply upon its face, it does state a cause of action. Such motion will be allowed
Per Curiam. Error.