Best v. Lancaster, 36 S.E. 126

Best v. Lancaster

36 S.E. 126 | N.C. | 1900

Lead Opinion

Clark, J.

This was a proceeding to correct a mistake in a partition under* Tbe Code, sec. 1918, and was transferred *561by tbe clerk to the civil issue docket upon issue joined. In the Superior Court a motion by the plaintiff to remand to the clerk, without tidal of the issue, was denied. A motion for judgment on the ground of insufficient verification of the answer, was met by a counter motion to permit a new verification, which was allowed. Thereupon the plaintiff appealed.

The appeal is premature. The plaintiff should have had his exceptions noted in the record, and on the appeal from the final judgment the rulings excepted to would have come up for review. There is no judgment to appeal from, bnt simply the refusal of a motion to remand and the allowance of a verification.

In Kruger v. Bank, 123 N. C., 16, there was no answer and no time allowed to file answer, or to demur, and the refusal of judgment under such circumstances was the denial of a substantial right given by see. 386, of The Code. Phifer v. Insurance Co., 123 N. C., 410, and Cole v. Boyd, 125 N. C., 496, held that the verification of the complaint being insufficient, a judgment by default final should be corrected into default and inquiry, but it was not held that the Court could not permit a proper verification. As was said by Merrimon, J., in Grant v. Reese, 90 N. C., 3, “Slight attention to the decisions of the Court would prevent miscarriages like the present and facilitate the administration of justice.”

Appeal dismissed.

Concurrence Opinion

Douglas, J.,

concurring. I merely wish to emphasize the fact that this Court did not intend by its decisions in Phifer v. Insurance Co., 123 N. C., 410; Cole v. Boyd, 125 N. C., 496, and Payne v. Boyd, Ibid, 499, to limit in any degree, even by disapproval, the power of the court below to allow amended verifications in the interest of substantial justice. The object of those decisions was to compel a sufficient veri-*562ficatio-n, so that a pleader wbo took advantage of the form of the statute would be equally bound by its substantial purpose. In Gole v. Boyd, the Court says: “But the object of verification- is to verify. If it fails to do this, it is worse than useless. If a party wishes to bind his opponent with the obligations of a verified pleading, he must bind himself, and must so state every material allegation that it will not only rest under the moral sanctity of an oath, but that its falsity will fasten upon him the penalties of perjury. This, being the object of a verification, is the true test of its sufficiency.” Again, the Court says in Payne v. Boyd: “We deem it necessary to adhere to the reasonable enforcement of this rule in the interest of substantial justice. In the present case, it does not appear to work any hardship-, and m all cases the party can appeal to the discretionary power of amendment lodged m the court, which we doubt not will be exercised upon all proper occasions.” Where- the allowance of such an amendment tends to a fair trial of the case upon its merits, I think it is eminently proper that the Court should grant it, giving of course to the adverse party a reasonable opportunity to meet the amended pleadings.

Lead Opinion

The plaintiffs moved to remand to the clerk, motion disallowed. Plaintiffs excepted. Plaintiffs moved for judgment for insufficient verification of answer. Motion disallowed, being met by counter-motion to amend the verification of answer on part of defendants.

Plaintiffs excepted and appealed. This was a proceeding to correct a mistake in a partition under The Code, sec. 1918, and was transferred by the clerk to the civil issue docket upon issues joined. In the Superior Court a motion by the plaintiff to remand to the clerk, without trial of the issue, (561) was denied. A motion for judgment on the ground of insufficient verification of the answer, was met by a counter-motion to permit a new verification, which was allowed. Thereupon the plaintiff appealed.

The appeal is premature. The plaintiff should have had his exceptions noted in the record, and on the appeal from the final judgment the rulings excepted to would have come up for review. There is no judgment to appeal from, but simply the refusal of a motion to remand and the allowance of a verification.

In Kruger v. Bank, 123 N.C. 16, there was no answer and no time allowed to file answer, or to demur, and the refusal of judgment under such circumstances was the denial of a substantial right given by sec. 386, of The Code. Phifer v. Insurance Co., 123 N.C. 410, and Cole v. Boyd,125 N.C. 496, held that the verification of the complaint being insufficient, a judgment by default final should be corrected into default and inquiry, but it was not held that the court could not permit a proper verification. As was said by Merrimon, J., in Grant v. Reese,90 N.C. 3, "Slight attention to the decisions of the Court would prevent miscarriages like the present and facilitate the administration of justice."

Appeal dismissed. Cited: Cantwell v. Herring, 127 N.C. 84.

(563)