172 S.E.2d 890 | N.C. Ct. App. | 1970
The WICKES CORPORATION
v.
Glenn I. HODGE and Ida N. Hodge.
Court of Appeals of North Carolina.
*891 Holleman & Savage by Carl P. Holleman, Apex, for plaintiff appellee.
John V. Hunter, III, Raleigh, for defendant appellants.
BRITT, Judge.
First, defendants contend that the superior court erred in overruling their demurrers interposed because of improper joinder of causes of action; that although plaintiff sued on nine separate promissory notes, executed and delivered on seven separate dates, it did not state its several causes of action separately in the complaint.
Paragraph III of the complaint is as follows:
"III. That on October 5, 1966, for value received the defendants executed and delivered to the plaintiff a promissory note bearing said date, in the sum of $603.89, payable on demand, with interest from October 5, 1966, at the rate of 6% per annum. A copy of said note is attached hereto as `Exhibit A' and asked to be taken as a part of this complaint."
In the succeeding eight paragraphs, plaintiff similary pleads the other eight notes. In paragraph XII, plaintiff alleges that it remains the owner and holder of all of said notes, that it has made demand on defendants for payment but no payment has been made, and then proceeds to allege the amount due plaintiff on each note.
Defendants argue that the complaint did not comply with G.S. § 1-123. Conceding, arguendo, the correctness of defendant's argument and that the court erred in overruling the demurrers, we do not think the error was prejudicial to defendants who have the burden not only to show error but that the alleged error is prejudicial. Arant v. Ransom, 4 N.C.App. 89, 165 S.E.2d 671.
The 1967 General Assembly, by Chapter 954 of the 1967 Session Laws, enacted a new code of civil procedure; section 10 of the act provides that it shall be in full force and effect on and after 1 July 1969 "and shall apply to actions and proceedings pending on that date as well as to actions and proceedings commerced on and after that date." The 1969 General Assembly, by Chapter 803 of the 1969 Session Laws, postponed the effective date of the act to 1 January 1970; section 1 of said Chapter 803 provides as follows:
"Section 10 of Chapter 954 of the Session Laws of 1967 is rewritten to read as follows:
"Sec. 10. This Act shall be in full force and effect on and after January 1, 1970, and shall apply to actions and proceedings pending on that date as well as to actions and proceedings commenced on and after that date.'"
G.S. § 1-123 was specifically repealed by Chapter 954 of the 1967 Session Laws and from and after 1 January 1970 the proposition under discussion is covered by G.S. § 1A-a, Rule 18(a). Plaintiff's complaint clearly would comply with the new rule. The order overruling the demurrers was entered 13 November 1968 and this action was tried in October 1969 at which times the new rules were not applicable; however, the action was pending on 1 January 1970, became subject to the new rules on that date, and if remanded to the superior court would be dealt with under the new rules. For that reason, we cannot perceive that defendants have been prejudiced.
In their brief defendants contend that the trial court erred in overruling defendants' motion for nonsuit for that in their answer defendants denied the corporate existence of plaintiff and the court improperly admitted in evidence, over defendants' objection, a certificate of the Secretary of State of North Carolina with respect to plaintiff's corporate existence. However, defendants' counsel in his oral argument to this Court conceded that there is no merit in this contention in the light of the opinion of our Supreme Court in Otis Elevator Co. v. Cape Fear Hotel Co., *892 172 N.C. 319, 90 S.E. 253, cited in plaintiff's brief wherein it was held that where a written contract entered into between the parties furnishes evidence that the defendant was dealing with the plaintiff as a corporation, and the plaintiff's existence as a corporation is denied, the contract may properly be introduced upon this disputed fact. In the instant case, defendants admitted execution of the notes upon which suit was brought, which notes named Wickes Corporation as payee; at trial, pursuant to stipulation, photographed copies of the notes in lieu of the originals were introduced in evidence by plaintiff. Without passing upon the admissibility of the Secretary of State's certificate, we hold that the notes, or copies thereof, provided sufficient evidence to support the court's finding that plaintiff is a corporation.
The judgment of the superior court is
Affirmed.
BROCK and GRAHAM, JJ., concur.