{ "id": 8693084, "name": "HENRY VON GLAHN and others v. A. J. DeROSSETT and others", "name_abbreviation": "Von Glahn v. DeRossett", "decision_date": "1877-01", "docket_number": "", "first_page": "292", "last_page": "294", "citations": [ { "type": "official", "cite": "76 N.C. 292" } ], "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": [ { "cite": "73 N. C. 323", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8691473 ], "opinion_index": -1, "case_paths": [ "/nc/73/0323-01" ] }, { "cite": "73 N. C. 323", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8691473 ], "opinion_index": 0, "case_paths": [ "/nc/73/0323-01" ] } ], "analysis": { "cardinality": 333, "char_count": 5153, "ocr_confidence": 0.425, "pagerank": { "raw": 3.0432599405403377e-07, "percentile": 0.8554060487696387 }, "sha256": "ae54f1a7f4a8b3a6494ef229731794eea05f0d7b2608c940da984c10699d7d76", "simhash": "1:c53be61e8f1030ed", "word_count": 919 }, "last_updated": "2023-07-14T21:21:57.000998+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "HENRY VON GLAHN and others v. A. J. DeROSSETT and others." ], "opinions": [ { "text": "Peae-SON, C. J.\nIn Von Glahn v. Harris, 73 N. C. 323, it is held that one creditor could not maintain an action against' one stockholder; but that the action should be in the nature of a \u201ccreditors bill,\u201d in the name of one or more of the creditors in behalf of themselves and all of the other creditors who may choose to become plaintiffs against all of the stockholders.\nAccordingly this action is by Von Claim and the other creditors against DeRossett, Kidder and others, who are all of the stockholders known to plaintiffs, with leave to make defendants auy other stockholders who may become known to the plaintiffs.\nJDeRossett and the others defend by way of answer, except Kidder, wrho defends by way of demurrer.\nThe case now comes before us upon the demurrer of Kidder.\nThis is a novel mode of procedure and we are not willing to allow the case to be split up in that way. The defendants are under a joint liability; their interest in the questions involved is identical and much obscurity and confusion will result from a severance in the mode of defence. When there is but one defendant he is not allowed to demur and also to answer; after the demurrer is overruled he can put in an answer but he cannot defend in both modes at the same time; that would be double pleading in a way not provided for by the statute of Anne.\nHere we have several defendants whose liability is joint and whose interest in the question is identical. To allow a severance in the mode of defence would let in all of the inconveniences which the rule of the common law in regard to practice, by which double pleading is not allowed; was intended to exclude. Eor illustration; If the demurrer of the defendant Kidder be disposed of, that will decide the-merits of the case, and the defendants DeRossett and others will not have had an opportunity of being heard by counsel. If the demurrer should be overruled, the case will in effect be decided against them, and if it be sustained the ease will be dismissed as to Kidder and they will be left, in an anomalous condition.\nBy the old equity practice, when the Court, is unwilling' to sustain a plea and yet hesitates to overrule it absolutely a middle course is adopted, the plea is overruled \u201creserving the equity until final hearing.\u201d See Mitford\u2019s Pleading. Pursuing this analogy, the demurrer will be overruled with leave for the defendant to make the same defence by way of \u25a0answer \u2014 the point not being now decided.\nThe second ground of demurrer is subject to another objection. It is \u201ca speaking demurrer,\u201d as styled by the books. That is, in order to sustain itself, the aid of a fact not appearing upon the complaint is invoked, to-wit; the allegation that a.t the expiration of the charter, the Bank held a fund which should be first applied to the satisfaction of the debts of the plaintiffs. Whether there be any fund left on hand at the expiration of the charter of the Bank is a question of fact that cannot be inquired into up>on demurrer, which raises only an issue of law in regard to the \u25a0cause of action set out in the complaint.\nError. Demurrer overruled, reserving the equity of the \u2022defendant.\nShould this case extending now to 110 pages be brought np again we will not open the papers unless all of the ma- \u2022 terial pleadings are printed or unless there be \u201can index\u201d to -the several pages.\nThe Court will say to the Clerks of the Superior Courts, \"\u201cinstead of attaching all of the papers together, so as to make it \u201ca labor\u201d for the Justices to keep the \u201clegal cap\u201d from '\u201cfolding!, up\u201d &c. which provision was imported from the State of New York into our State, where fortunately there \"has not been any use for it, we would be better pleased if you endorse a file of ptapers \u201ccomplaint and answer\u201d ; another file, \u201cevidence and charge of Judge\u201d; another \u201cjudgment and appeal.\u201d\nIn this way the members of the Court will be relieved from a labor that has got to be intolerable ; i. e. 123 pages \u25a0of manuscript to decide a demurrer which is not conclusive upon the other defendants\nError.\nPER C\u00fcRIAM. Judgment reversed.", "type": "majority", "author": "Peae-SON, C. J." } ], "attorneys": [ "Messrs. Wr S. \u00a7 D. J. Devane and D. L. Rvssdl, for plaintiffs.", "No counsel for defendants." ], "corrections": "", "head_matter": "HENRY VON GLAHN and others v. A. J. DeROSSETT and others.\nPractice \u2014 Severance of Defence \u2014 Demurrer.\n1. In an action against several defendants whose liability is joint and whose interest in the action is identical, the defendants will not be permitted to sever in their defence.\n!2. A demurrer, which in order to sustain itself invokes the aid of a fact not appearing upon the complaint must be overruled.\n{Suggestions by Pearson, O. J, to Clerks of the Superior Courts upon the manner of making up records on appeal to the Supreme Court.)\n(Von Glahn v. Harris, 73 N. C. 323, cited and approved )\nCivil AotioN, tried at Eall Term, 1876, of Bkunswick Superior Court, before McKoy, J.\nThe action was commenced in New Hanover and remov- .