16 S.E. 917 | N.C. | 1893
The breach of the bond complained of was the violation by the defendant of section 1814 of The Code, in regard to the issuance of license for the marriage of a girl under 18 years of age without consent of her father, the plaintiff.
Defendants answered, setting up defenses, but at the trial moved to dismiss the action:
1. For want of jurisdiction, in that the plaintiff is suing for a penalty of $200 for the failure of the defendant Roberts, register of deeds, to obtain the written consent of the father of one Ida Joyner, a woman under 18 years of age, to the marriage of said Ida to one Charles Lewis, before issuing license therefor.
2. For that the complaint fails to state a cause of action, in that it fails to allege that the relator of the plaintiff had previously obtained a judgment against the defendant Roberts, the register of deeds, for said penalty, and that he had failed to pay the same. His Honor refused the motion, and defendants appealed. The defendants moved to dismiss, on the grounds, first, that the court did not have jurisdiction, and, second, because the complaint did not state a cause of action, and, the motion being refused, appealed from the refusal. It has been repeatedly held that no appeal lies from a refusal to dismiss an action, but that the remedy is to have an exception noted in the record. Mullen v. Canal Co., ante, 109, and cases there cited. (113)
It is contended, however, that this is, in effect, a demurrer ore tenus, and that therefore an appeal lies. From the overruling of a formal demurrer an appeal does lie. But there is this protection against abuse, that if the demurrer is frivolous, judgment is at once granted the plaintiff. The Code, sec. 388. But there is no such remedy on overruling this motion. The answer was filed (which fact of itself would *112
have overruled a demurrer), and the defendants, after the denial of the motion, were entitled to a trial upon the issues raised. They should have entered an exception and have proceeded. If an appeal lay in such cases, every defendant in every case could procure six or twelve months delay by simply objecting to the jurisdiction or to the sufficiency of the complaint, no matter how plain the case or how utterly unfounded the grounds of the objectives, since, as has been already said, judgment cannot be entered as when a frivolous demurrer is filed. To rule that an appeal lay in such case would be simply to establish a "stay law." There is less excuse for an appeal in this particular respect, since the defendants cannot possibly be damaged by delaying the appeal till the final judgment, because, even though they should fail to note an exception, the objection to the jurisdiction and for failure of the complaint to state a cause of action can still be taken advantage of for the first time in this Court. Rule 27 of the Supreme Court. Those ground of objection cannot be waived by proceeding to trial. Tucker v. Baker,
There are some questions which, by the reiterated and uniform adjudications in regard to them, should be deemed settled. This is one of them.
Though the appeal must be dismissed the Court in its discretion may consider the points raised. S. v. Wylde,
The first objection, which is to the jurisdiction because the action is for a penalty of $200, would have been good under the former statute and decisions, because the bond was not liable. Holt v. McLean,
In Maggett v. Roberts,
The second objection is that "the complaint does not state a cause of action because it fails to allege that a judgment has (115) been obtained against the defendant Roberts for the penalty and that he has failed to pay it." The law does not authorize such a provision in the bond, and if the bond is not expressed according to the statute "The Code, sec. 1891, cures any possible defect in such respect." Kivette v.Young, supra. That section provides that if there is "any variance in the penalty or conditions of the instrument from the provision prescribed by law," recovery shall be had "as if the conditions had conformed to the provisions of law."
There was no error in refusing to dismiss the action. It may be noted that Maggett v. Roberts, supra, was an action against the officer alone for the penalty, and the action was held properly brought in the name of the plaintiff. The present action is upon the official bond under The Code, sec. 1883, and the plaintiff may consider whether he should not ask an amendment below to make himself a relator in an action in the name of the State. Wilson v. Pearson,
APPEAL DISMISSED.
Cited: Burrell v. Hughes,
