#### ASHEVILLE SHOWCASE & FIXTURE COMPANY v. RESTAURANT ASSOCIATES, INC., and N. W. B. BUILDING OF ASHEVILLE, INC.

No. 6828SC428

(Filed 20 November 1968)

Appeal from McLean, J., 19 August 1968 Session, Bunoombe County Superior Court.

This action is a companion case to a case with the same title, •decided this day, but bearing number 6828SC427. This case was instituted the same date, namely, 14 May 1968, but in this case the merchandise was valued at $7,000. It is alleged that the property was purchased during the month of September 1966; that the defendant, Restaurant Associates, Inc. (Restaurant), agreed to pay the plaintiff therefor the sum of $21,504.06; that subsequent to the time of the sale and delivery of the merchandise, the defendant Restaurant executed a promissory note dated 18 January 1967 payable on demand in the amount of $21,504.06 with interest thereon at the rate of six per cent per annum; and that to secure said note, the defendant Restaurant executed a chattel deed of trust conveying the merchandise in question. The plaintiff further alleges that the defendant Restaurant defaulted in the payments due; that defendant Restaurant, in fact, made no payments; and that there remains due $21,504.06 plus interest at the rate of six per cent per annum from 18 January 1967. The plaintiff seeks judgment from the defendant, N. W. B. Building of Asheville, Inc. (Building), alleging that the defendant Building on 13 June 1967 purchased all shares of stock in the defendant Restaurant “knowing at the time of the purchase of said stock that (Restaurant) was in complete default of said chattel Deed of Trust”; that defendant Building “assumed possession and control of said articles of merchandise”; that •defendant Building used the same in a restaurant located on the premises of the defendant Building; and that defendant Building ■“has succeeded to all obligations of (Restaurant) to this plaintiff under said chattel Deed of Trust.” The plaintiff seeks judgment against Restaurant and Building jointly and severally for $21,504.06 plus interest from 18 January 1967 and for the possession of the property in order to sell same and apply it on the indebtedness.

A judgment by default final was entered 24 July 1968 for the sum of $21,504.06 together with interest thereon from 18 January 1967 against both defendants. In this judgment a demurrer, filed 22 July 1968, was found not to have been timely filed and to be frivolous and without merit.

*82 Patla, Straus, Robinson & Moore; Harold K. Bennett by E-Glenn Kelly, Attorneys for plaintiff appellee.

Gudger and Erwin by James P. Erwin, Jr., Attorneys for defendant, N. W. B. Building of Asheville, Inc., appellant.

Campbell, J.

All of the facts, including filing dates, dates of orders, hearings and adjudications, were the same as in the companion case bearing the same title and decided this day. Since the decisive facts in the instant case and in the companion case, supra, are the same, upon authority thereof and cases therein cited, we hold that the demurrer having been timely filed and not being frivolous, it should be passed upon on its merits. Until that is done and the demurrer disposed of, the time for filing an answer has not expired.

Error and

Remanded.

Mallard, C.J., and Morris, J., concur.