George W. Swepson v. . John C. Harvey

66 N.C. 436 | N.C. | 1872

The case of Erwin v. Lowery, 64 N.C. 321, cited and approved. The action was based upon a bond for the payment of money, and the defendants filed an answer to the effect stated in the 4th syllabus. The plaintiff moved for judgment, as by default, treating the answer as impertinent and frivolous.

This view was sustained by His Honor, who rendered judgment accordingly, and the defendants appealed. In this case the plaintiff moved for judgment on his complaint on the ground that the defences set up in the answer were frivolous. What is meant by a frivolous answer is defined in Erwin v. Lowery, 64 N.C. 321.

It is there said if the defences set up in the answer are worthy of serious consideration, they are not frivolous. Clearly the defences set up in the answer in this case are worthy of serious consideration. It is the duty of the plaintiff to demur or reply to the several defences as he may be advised. He cannot get the opinion of a Court on the merits of the defences on the pretence that they are frivolous. If he demurs, and his demurrer is overruled, the Code leaves it to the discretion of the Judge to allow him to answer or not. We think it is the duty of the Judge always to allow a party to plead, after his demurrer is overruled, unless it is manifest that the demurer was merely frivolous, did not raise any question of law worthy of serious consideration, and was interposed merely for delay. The spirit and intent of the Code is, that all actions shall be tried as speedily as possible, as cheaply as possible, and upon their merits. Keeping these subjects steadily in view, all amendments of pleadings, and repleadings must be liberally allowed, which tend to promote them, and those only denied which tend to defeat them.

There was error in the judgment below which is reversed, and the case is remanded to be proceeded in according to law. The defendant will recover costs in this Court.

PER CURIAM. Judgment reversed.