{
  "id": 8615830,
  "name": "L. H. FOCHTMAN v. WALTER GREER",
  "name_abbreviation": "Fochtman v. Greer",
  "decision_date": "1927-12-07",
  "docket_number": "",
  "first_page": "674",
  "last_page": "675",
  "citations": [
    {
      "type": "official",
      "cite": "194 N.C. 674"
    }
  ],
  "court": {
    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
  "cites_to": [],
  "analysis": {
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  "last_updated": "2023-07-14T17:26:29.544042+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "L. H. FOCHTMAN v. WALTER GREER."
    ],
    "opinions": [
      {
        "text": "Pee Curiam:.\nPlaintiff brought an action against defendant on a promissory note, before a justice of the peace. A warrant of attachment was sued out at the time and service was had by publication. We are bound by the record. It discloses that when the cause came on for trial before the justice of the peace defendant, through his attorney, entered a special appearance, admitted the correctness of the account, and moved to vacate the attachment on the ground that defendant was a resident of this State. This motion was overruled and judgment was rendered in favor of the plaintiff, from which the defendant appealed to the Superior Court. Subsequent thereto Emma Greer and Fay Graham intervened, alleging ownership to certain personal property attached in tbe action. Tbis issue was tried in tbe Superior Court. Tbe jury decided against tbe interveners. Tbe attorney wbo appeared in tbe justice of tbe peace\u2019s court for defendant represented tbe inter-veners in tbe Superior Court.\nTbe burden of tbe issue t\u00f3 be answered by tbe jury was upon tbe interveners. Sugg v. Engine Co., 193 N. C., p. 814.\nFrom tbe record we find tbat in tbe justice of tbe peace\u2019s court defendant \u201cadmitted tbe correctness of tbe account.\u201d In tbe Superior Court defendant offered to plead tbe statute of limitation, tbrougb tbe same attorney wbo represented tbe interveners and wbo bad entered a special appearance for defendant in tbe justice of tbe peace\u2019s court and moved to vacate tbe attachment on tbe ground tbat defendant was a resident, but admitted tbe correctness of tbe account. Tbe court refused to allow tbis to be done. On an appeal to tbe Superior Court tbe trial is de novo, \u201ca new trial of tbe whole matter.\u201d C. S., 661. Tbe defense of tbe statute of limitation, to be available, must be pleaded. 8 Eneye. Dig., N. C. Eeports, p. 887, see. 134, and cases cited.\nDefendant did not plead tbe statute of limitation, but admitted in tbe justice of tbe peace\u2019s court tbe correctness of tbe debt. Tbe leave to file answer in tbe Superior Court and plead tbe statute of limitations, under tbe facts and circumstances of tbis case, was in tbe discretion of tbe court below. Defendant cannot \u201cblow hot and cold in tbe same breath.\u201d\nTbe cases of Woodard v. Milling Co., 142 N. C., p. 100, and White v. Peanut Co., 165 N. C., p. 132, are not in conflict with tbe position here taken. We find\nNo error.",
        "type": "majority",
        "author": "Pee Curiam:."
      }
    ],
    "attorneys": [
      "W. B. Austin for plaintiff.",
      "W. B. Bauguess for defendant."
    ],
    "corrections": "",
    "head_matter": "L. H. FOCHTMAN v. WALTER GREER.\n(Filed 7 December, 1927.)\n1. Limitation of Actions \u2014 Pleadings\u2014Courts\u2014Justices of the Peace \u2014 Appeal \u2014 Trial de Novo \u2014 Discretion.\nAn appeal from a court of a justice of the peace is tried ate novo in the Superior Court, C. S., 661, and when the account sued on is admitted in the former court, it is discretionary with the trial judge to permit the plea of the statute of limitations which is necessary to defendant\u2019s right to set it up.\n2. Actions \u2014 Interveners\u2014Burden of Proof.\nThe burden of proof is upon the intervener in an action.\nAppeal by defendant from Sinclair, J., and a jury, at May Special Term, 1927, of Ashe.\nNo error.\nW. B. Austin for plaintiff.\nW. B. Bauguess for defendant."
  },
  "file_name": "0674-01",
  "first_page_order": 742,
  "last_page_order": 743
}