{ "id": 8547626, "name": "CLARENCE SAWYER WHITE v. RAYFORD WILSON PERRY", "name_abbreviation": "White v. Perry", "decision_date": "1969-12-17", "docket_number": "No. 696SC418", "first_page": "36", "last_page": "39", "citations": [ { "type": "official", "cite": "7 N.C. App. 36" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "128 S.E. 2d 843", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1963, "opinion_index": 0 }, { "cite": "258 N.C. 390", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560917 ], "year": 1963, "opinion_index": 0, "case_paths": [ "/nc/258/0390-01" ] }, { "cite": "143 S.E. 2d 286", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1965, "opinion_index": 0 }, { "cite": "265 N.C. 130", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574582 ], "year": 1965, "opinion_index": 0, "case_paths": [ "/nc/265/0130-01" ] }, { "cite": "44 S.E. 2d 593", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1947, "opinion_index": 0 }, { "cite": "228 N.C. 78", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8623340, 8623276 ], "year": 1947, "opinion_index": 0, "case_paths": [ "/nc/228/0078-02", "/nc/228/0078-01" ] }, { "cite": "18 N.C. L. Rev. 308", "category": "journals:journal", "reporter": "N.C. L. Rev.", "opinion_index": 0 }, { "cite": "126 N.C. 525", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8661029 ], "year": 1947, "opinion_index": 0, "case_paths": [ "/nc/126/0525-01" ] }, { "cite": "43 S.E. 509", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "132 N.C. 52", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8657350 ], "opinion_index": 0, "case_paths": [ "/nc/132/0052-01" ] }, { "cite": "136 S.E. 2d 665", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1964, "opinion_index": 0 }, { "cite": "262 N.C. 284", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567105 ], "year": 1964, "opinion_index": 0, "case_paths": [ "/nc/262/0284-01" ] }, { "cite": "163 S.E. 2d 363", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "opinion_index": 0 }, { "cite": "274 N.C. 362", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560125 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/nc/274/0362-01" ] } ], "analysis": { "cardinality": 421, "char_count": 8710, "ocr_confidence": 0.557, "pagerank": { "raw": 1.6434643337850167e-07, "percentile": 0.6914839436584913 }, "sha256": "4bb4ae5f35ae3db48a79fb29a52d30f7ab59e35904fa65b0259a1474a6e78058", "simhash": "1:8a4d6ead453aabe8", "word_count": 1421 }, "last_updated": "2023-07-14T21:45:53.911218+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Mallard, C.J., and Morris, J., concur." ], "parties": [ "CLARENCE SAWYER WHITE v. RAYFORD WILSON PERRY" ], "opinions": [ { "text": "HedRICK, J.\nThe exception to the signing and entry of the judgment presents for review the face of the record proper which includes whether the facts found or admitted support the judgment. Fishing Pier v. Town of Carolina Beach, 274 N.C. 362, 163 S.E. 2d 363 (1968).\nAppellant in his brief states \u201cPlaintiff does not question the proposition that pleading a release through a further reply can constitute a ratification of a settlement and bar a plaintiffs cause of action.\u201d We hold that the pleading of the release by the plaintiff in the \u201cfurther reply\u201d constituted a ratification by the plaintiff of the settlement made by his insurance carrier with the defendant. Keith v. Glenn, 262 N.C. 284, 136 S.E. 2d 665 (1964).\nThis leaves us with the proposition of whether the withdrawal by the plaintiff of the \u201cfurther reply\u201d constituted a revocation of the ratification. The answer is no. In Norwood v. Lassiter, 132 N.C. 52, 43 S.E. 509, it is said: \u201cWhen a party has the right to ratify or reject, he is put thereby to his election, and he must decide, once and for all, what he will do, and when his election is once made it immediately becomes irrevocable. This is an elementary principle. Austin v. Stewart, 126 N.C. 525.\u201d See also Breckenridge, \u201cRatification in North Carolina\u201d, 18 N.C. L. Rev. 308. Although the \u201cfurther reply\u201d had been withdrawn as a pleading, it was proper for Judge Bundy to consider it in making his findings of fact and conclusions of law. Davis v. Morgan, 228 N.C. 78, 44 S.E. 2d 593 (1947).\nAppellant relies on Bongardt v. Frink, 265 N.C. 130, 143 S.E. 2d 286 (1965), which is readily distinguishable. In that case, after the court permitted the plaintiff to withdraw the reply pleading the release, the defendant did not amend its answer to allege the filing of the reply as a plea in bar.\nAppellant contends that the judgment entered by Bundy, J., overruled the order of Hubbard, J., dated 25 November 1968. We do not agree.\nThe \u201cfurther reply\u201d was withdrawn when Judge Hubbard overruled defendant\u2019s original demurrer; therefore, there was not, and could not have been, any final ruling upon the merits of the demurrer. Obviously, Judge Hubbard\u2019s order contemplated the filing by the defendant of an amended answer setting up the ratification of the release by the plaintiff as a plea in bar to the plaintiff\u2019s cause of action.\nThe sustaining or overruling by a superior court judge of a demurrer with leave to amend the pleading does not preclude another superior court judge from thereafter ruling on a demurrer to the amended pleadings. 2 Strong, N.C. Index 2d, Courts, Sec. 9, p. 447; Simpson v. Plyler, 258 N.C. 390, 128 S.E. 2d 843 (1963).\nThe findings of fact support the judgment entered.\nAffirmed.\nMallard, C.J., and Morris, J., concur.", "type": "majority", "author": "HedRICK, J." } ], "attorneys": [ "Leroy, Wells, Shaw & Hornthal, by L. P. Hornthal, Jr., for defendant appellee.", "Jones, Jones & Jones, by A. B. Harrington, Jr., for plaintiff appellant." ], "corrections": "", "head_matter": "CLARENCE SAWYER WHITE v. RAYFORD WILSON PERRY\nNo. 696SC418\n(Filed 17 December 1969)\n1. Appeal and Error \u00a7 26\u2014 exception to signing of judgment\nAn exception to tbe signing and entry of tbe judgment presents for review tbe face of the record proper, wbicb includes whether the facts found or admitted support the judgment.\n2. Compromise and Settlement \u00a7 3; Pleadings \u00a7 31\u2014 pleading release obtained by insurer \u2014 ratification of release \u2014 bar to action \u2014 withdrawal of pleading\nIn this action for personal injuries and property damage resulting from an automobile collision, wherein plaintiff by a further reply pleaded a release and settlement obtained by his insurance carrier as a bar to defendant\u2019s counterclaim, and defendant amended his answer to allege the filing of the further reply as a plea in bar to plaintiff\u2019s action, the pleading of the release in plaintiff\u2019s further reply constituted a ratification by plaintiff of the settlement by his insurance carrier with defendant and bars plaintiff\u2019s cause of action, and withdrawal of plaintiff\u2019s further reply did not constitute a revocation of the ratification.\n3. Compromise and Settlement \u00a7 3\u2014 consideration of withdrawn pleading\nAlthough plaintiff\u2019s further reply alleging a release obtained by his insurer as a bar to defendant\u2019s counterclaim had been withdrawn as a pleading, the trial court properly considered the further reply in determining whether the allegation of the release constituted a bar to plaintiff\u2019s action.\n4. Courts \u00a7 9\u2014 judgment on demurrer \u2014 demurrer to amended pleadings \u2014 consideration by another judge\nThe sustaining or overruling by a superior court judge of a demurrer with leave to amend the pleading does not preclude another superior court judge from thereafter ruling on a demurrer to the amended pleadings.\nAppeal by plaintiff from Bundy, J., May 1969 Session of BeRtie Superior Court.\nWhen this cause came on for hearing before Bundy, J., upon the defendant\u2019s plea in bar to the plaintiff\u2019s alleged cause of action, the record discloses that the parties waived a jury trial as to the issue of the defendant\u2019s plea in bar and stipulated that the court could find facts and enter judgment thereon. The court, after considering the pleadings and stipulations of the parties as to the facts and after hearing argument of counsel, made the following findings of fact and conclusions of law:\n\u201c1. This is a civil action arising out of an automobile collision between vehicles driven by plaintiff and defendant on December 21, 1967 at about 7:40 p.m. on North Carolina Highway 45, at a point about four miles south of Colerain, North Carolina.\n\u201c2. Plaintiff\u2019s complaint alleges causes of action for his personal injuries and property damages arising out of the subject collision. Defendant\u2019s original answer, inter alia, alleged a counterclaim for defendant\u2019s personal injuries and property damages in the total sum of $1,300 and offered to credit the sum of $100 'already paid to the defendant for and on behalf of the plaintiff.\u2019 On August 30, 1968, plaintiff, through his personal attorneys, filed a reply to said counterclaim, alleging a general denial of the pertinent facts alleged in defendant\u2019s answer and renewing plaintiff\u2019s prayer for relief set forth in his complaint.\n\u201c3. On September 19, 1968, plaintiff\u2019s attorneys caused to be filed in the office of the clerk of Superior Court of Bertie County a further reply, which is on file in the original court folio in this action. Said further reply was admitted into evidence by stipulation of the parties, and is hereby incorporated by reference as a part of these findings of fact as if fully set out herein.\n\u201c4. Said further reply was prepared by Pritchett, Cooke & Burch, Attorneys for plaintiff\u2019s liability insurer only and mailed to the office of plaintiff\u2019s personal attorneys, Jones, Jones & Jones, in Ahoskie, North Carolina, where said further reply was signed by Carter W. Jones of said Jones firm and duly verified by plaintiff before notary public in the Jones\u2019 law offices on September 17, 1968.\n\"5. Plaintiff\u2019s attorneys were not aware that the pleading of the release, (secured by plaintiff\u2019s liability insurance carrier from the defendant), as set forth in said further reply, would constitute a bar to plaintiff\u2019s action herein, it being the understanding of plaintiff\u2019s counsel that said pleading would bar defendant\u2019s counterclaim, but not bar plaintiff's right of action herein.\n\u201c6. Plaintiff was permitted to withdraw said further reply by order of the Honorable Howard H. Hubbard, Judge Presiding at the November 1968 Session of Superior Court of Bertie County, which is dated November 25, 1968 and appears of record in this cause.\n\u201c7. Thereafter, in apt time as permitted by said order, defendant filed an amended answer, which alleges, inter alia, that said further reply constituted a ratification of the release and settlement between defendant and plaintiff\u2019s insurance carrier and a bar to plaintiff\u2019s action herein, which amended answer appears of record in this cause.\n\u201c8. By said further reply, plaintiff sought to bar defendant\u2019s counterclaim by pleading of the release and settlement obtained by his insurance carrier. Thereby, plaintiff has sought to use said settlement to his advantage, accepted its benefits and ratified the same.\n\u201cUPON SAID FINDINGS OF FACT, the court makes the following CONCLUSIONS OF- LAW:\n\u201cBy said further reply, plaintiff has ratified his liability insurance carrier\u2019s settlement with the defendant, thereby barring his causes of action herein alleged as well as defendant\u2019s counterclaim herein.\u201d\nTo the entry of a judgment dismissing plaintiff\u2019s cause of action, and the defendant\u2019s counterclaim, the plaintiff excepted and appealed to the North Carolina Court of Appeals.\nLeroy, Wells, Shaw & Hornthal, by L. P. Hornthal, Jr., for defendant appellee.\nJones, Jones & Jones, by A. B. Harrington, Jr., for plaintiff appellant." }, "file_name": "0036-01", "first_page_order": 58, "last_page_order": 61 }