{
  "id": 11270304,
  "name": "W. R. LANEY v. HUTTON AND BOURBONNAIS",
  "name_abbreviation": "Laney v. Hutton",
  "decision_date": "1908-12-02",
  "docket_number": "",
  "first_page": "264",
  "last_page": "267",
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      "cite": "149 N.C. 264"
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    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
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    "name_long": "North Carolina",
    "name": "N.C."
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    {
      "cite": "92 N. C., 391",
      "category": "reporters:state",
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  "last_updated": "2023-07-14T21:20:43.519867+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "W. R. LANEY v. HUTTON AND BOURBONNAIS."
    ],
    "opinions": [
      {
        "text": "Walked., J.\nThis action ivas brought before a Justice to recover an indebtedness by the defendants to the plaintiffs for work and labor performed at.their request.\nThe summons -was issued 16 January, 1907, to Caldwell County for Will Wilkerson, who resided therein, and to Catawba County for Hutton and Bourbonnais, returnable 1 February, 1907. It .was served on Hutton and Bourbon-nais 28 January, 1907. They did not appear, and the,Justice gave judgment for the plaintiffs-on 1 February, 1907. Defendants afterwards appealed to the Superior Court. The defendants, Hutton and Bourbonnais, alone appealed to this Court. The jury returned a verdict for the plaintiffs, and judgment was entered thereon.\nIn the. Superior Court, the defendants demurred for mis-joinder of causes of action as each plaintiff had a separate cause of action. The defendants ITutton and Bourbonnais contended here that the action should be dismissed, as the Justice entered judgment when the summons had not been served ten days before the day on which it was returnable, contrary to Eevisal, sec. 1451. The irregularity in this respect was.waived, as the defendants did not apjoear before the .Justice and ask for further time to plead, nor did they move before him to set aside the judgment, nor did they move in the Superior Court to dismiss, if that \u2022tfould have been a proper motion, but they entered a general appearance and demurred and, besides, have had full opportunity to plead to the merits and have the issues tried by a jury. The defect in the Justice\u2019s proceedings was thereby waived or cured. Roberts v. Allman, 92 N. C., 391; Wheeler v. Cobb, 75 N. C., 21. Section 1451 of the Eevisal was evidently intended to afford the defendants a reasonable opportunity to appear and plead. The judgment was ndt void but irregular, or, at most, voidable. Guion v. Melvin, 69 N. C., 242; Strayhorn v. Blalock, 92 N. C., 293.\nThe demurrer for misjoinder was properly overruled, as it appears from the summons and Justice\u2019s return that the plaintiffs alleged that the debt was due to the plaintiffs jointly and not severally. If this was not true, the objection should have been taken by answer, for in passing upon the defendants\u2019 demurrer, Ave can consider only the allegations of the complaint. Eevisal, sec. 477.\nWith regard to the declarations of Wilkerson, it may be said that the plaintiff, W. E. Laney, testified, without objection, that Hutton had told him that Wilkerson was working for' Hutton and Bourbonnais and, on cross-examination by the defendants, he further testified as fully in regard to -the matter and to the same effect.\nThe motion to nonsuit upon the evidence Avas properly overruled, as there was sufficient eA\u00dadence to establish the plaintiff\u2019s claim. AY. E. Laney testified that Iiutton told . him tlie debt was due and would be paid.\nAATe have examined the numerous exceptions and find no error in the rulings of the Court. The exceptions not mentioned by us require no special discussion.\nNo error.",
        "type": "majority",
        "author": "Walked., J."
      }
    ],
    "attorneys": [
      "M. N. Uarshaw for plaintiff.",
      "Marie Squires and E. B. Cline for defendants."
    ],
    "corrections": "",
    "head_matter": "W. R. LANEY v. HUTTON AND BOURBONNAIS.\n(Filed 2 December, 1908).\n1. Justice\u2019s Court \u2014 Summons\u2014Service on Non-Resident of County \u2014Appearance\u2014Waiver.\nBy entering a general appearance and demurring, a non-resident defendant of tbe county waives or cures tbe defect, in proceedings against bim in a Justice\u2019s court, for want of service of summons ten days preceding tbe trial, as prescribed by Eevisal, sec. 1451.\n2. Judgments \u2014 Justice\u2019s Court \u2014 Summons \u2014 Service\u2014Irregularity \u2014Voidable.\nA judgment against a non-resident defendant of tbe county, obtained in a Justice\u2019s court without having bad tbe ten days\u2019 previous service of tbe summons, as required by Eevisal, sec. 1451, is not void but irregular, or, at most, voidable.\n3. Pleadings \u2014 Joinder of Actions \u2014 Demurrer\u2014Misjoinder\u2014Defense by Answer.\nWhen it appears, both by the summons and Justice\u2019s return, in an action brought in his court, that the plaintiff alleged a \u2022 joint demand against the several defendants, a demurrer of defendants in the Superior Court for misjoinder of separate actions will not be sustained, as the allegations of the complaint must be taken as true, and such defense should be by way of answer. Revisal, sec. 477.\n4. Evidence \u2014 Declarations\u2014Objections and Exceptions \u2014 -'Appeal and Error.\nDeclarations made by a party and testified to on the direct examination by a witness, not objected to at the time, and gone fully into on cross-examination, cannot be considered on appeal.\n5. Evidence \u2014 Nonsuit.\n\u201cWhen there is some evidence that defendant had acknowledged his liability for a debt sued on, a motion for judgment as of non-suit upon the evidence should be disallowed.\nCivil aotioN tried before Ferguson, J., and a jury, June Term, 1908, of Caldwell. Defendants appeal.\nM. N. Uarshaw for plaintiff.\nMarie Squires and E. B. Cline for defendants."
  },
  "file_name": "0264-01",
  "first_page_order": 298,
  "last_page_order": 301
}