Curran v. . Kerchner

23 S.E. 177 | N.C. | 1895

This is an action to recover money, brought on two notes, one for two thousand dollars and the other for five thousand (265) dollars, each note set out and alleged as different causes of action — first cause and second cause of action.

This action was returnable to September Term, 1895, of New Hanover Superior Court, at which term the plaintiff filed a verified complaint, and defendant answered as to the $5,000 note set out as the second cause of action, but made no answer whatever to the $2,000 note set out as the first cause of action.

Upon this state of pleadings plaintiff moved for judgment on the $2,000 note, and the court denied this motion and refused to grant the judgment as asked. In this there was error. Sections 382 and 385 of The Code.

There being no answer as to the $2,000 note the court should have given the plaintiff judgment on this note and retained the $5,000 note for trial upon the issues raised by the pleadings. Parker v. Bledsoe, 87 N.C. 221. This refusal to allow plaintiff's motion and to give judgment on the $2,000 note was the denial of a substantial right and may be appealed from and reviewed by this Court. Griffin v. Light Co., 111 N.C. 434.

There is error.

Cited: Kruger v. Bank, 123 N.C. 17; Cantwell v. Herring, 127 N.C. 83;Carraway v. Stancill, 137 N.C. 475; Adams v. Beasley, 174 N.C. 119.