Shaffer v. Morris Bank, 201 N.C. 415 (1931)

Oct. 7, 1931 · Supreme Court of North Carolina

201 N.C. 415

L. G. SHAFFER v. MORRIS BANK, Administrator of JULIUS SHAFFER, Deceased; IDA BANK, Wife of MORRIS BANK, and FIDELITY AND CASUALTY COMPANY OF NEW YORK.

(Filed 7 October, 1931.)

1. Pleadings D d — Demurrers may be pleaded only for tbe causes specified by statute.

Under our practice all demurrers are special and may be pleaded only for causes specified in tbe statute. C. S., 611, 512.

2. Pleadings D e — On demurrer allegations of complaint will be liberally construed.

Upon a demurrer the allegations of tbe complaint are taken as true and they will be construed liberally, and if when so construed it sets out sufficient facts, or sufficient facts can fairly be gathered therefrom to state a cause of action, the pleading will stand.

3. Appearance A a: A b — Demurrer to sufficiency of complaint is a general appearance waiving defective process.

By demurring to the sufficiency of the complaint a defendant makes a general appearance constituting a waiver of his objection that he is a nonresident and that the court has no jurisdiction over his person.

4. Pleadings D a — Improper venue may not be taken advantage of by demurrer.

A demurrer to the complaint on the grounds that the action was an attack on the final accounting of an administrator and was not brought in tlie county where the letters of administration were issued, is had, venue not being jurisdictional and being available to the objecting party not by demurrer, but by motion in the cause, O. S., 470, it further appearing in this case that the plaintiff might have the right to bring the action in the county of his residence under C. S., 465.

5. Pleadings D c — Demurrer invoking matters not appearing in complaint is bad.

Where the grounds for demurrer invoke matters not appearing upon the face of the complaint or ignore specific allegations therein that the plaintiff’s assignment of his interests was procured by fraud the demurrer should be overruled.

6. Pleadings D b — Held: demurrer for misjoinder of parties and causes should have been overruled.

The plaintiff may unite in one complaint several causes of action if they all arise out of the same transaction or a transaction connected with the same subject of action, C. S., 507, and held, in this case that there was not such misjoinder of parties and causes as to require a dismissal upon defendant’s demurrer.

Appeal by plaintiff from Hams, Jsustaining a demurrer to the complaint at February Term, 1931, of Nash.

Reversed.

The complaint sets out the following allegations. The plaintiff resides in Nash County; Morris Bank and his wife, in Baltimore. The principal office of the corporate defendant is in the city of New York.

Julius Shaffer died 12 August, 1929, leaving neither wife nor children, his next of kin being two brothers and a sister, namely, the plaintiff, Morris Shaffer of New York, and the defendant Ida Bank.

The deceased was a resident of Fayetteville. The plaintiff and Morris Bank conferred as to an administration on the estate. Afterwards, Morris Bank by letter requested the plaintiff to renounce his right to qualify as administrator and the plaintiff refused. Morris Bank then went to Fayetteville and falsely represented to the clerk in Cumberland County that he was the proper person to qualify, that all the relatives of the deceased were nonresidents of this State, and that he held their renunciation. In this way he falsely secured letters of administration and gave bond in the sum of $60,000, with the corporate defendant as surety. Morris Bank was indebted to the estate in the sum of $9,800. Ida Bank consented to and approved what he had done. As administrator he received and removed from North Carolina all the assets of the estate.

These two defendants unlawfully conspired to cheat and defraud the plaintiff and held the evidences of Morris Bank’s indebtedness to the estate of the deceased; fraudulently concealed from the plaintiff the financial condition of the estate; misrepresented the value of the plaintiff’s interest; stated tbat it would basten a settlement of tbe estate if tbe plaintiff would execute a deed of assignment to Ida Bank; and tbat by reason of tbe fraud so practiced tbe plaintiff assigned all bis right, title, and interest in tbe estate of tbe deceased. He received $16,500, wbieb tbe administrator represented to be tbe worth of tbe plaintiff’s interest and which in fact was much less than its value.

On 4 December, 1929, tbe administrator filed with tbe clerk in Cumberland County a purported final account showing tbe value of tbe estate to be approximately $70,000, although in fact it was worth in excess of $100,000. Tbe plaintiff demanded payment of tbe full value of bis interest, which tbe administrator refused to pay. Tbe plaintiff then brought suit in tbe Superior Court of Cumberland County and tbe administrator accounted for $3,000, tbe difference shown by tbe account, but still concealed from tbe plaintiff tbe true value of tbe estate and of bis interest therein, and in this way secured tbe signing of a consent judgment.

Tbe plaintiff afterwards discovered tbat tbe estate was worth much more than tbe administrator’s account disclosed and finally brought this action to recover tbe amount demanded in tbe complaint as money bad and received to tbe use of tbe plaintiff.

, Tbe defendants demurred to tbe complaint, tbe court sustained tbe demurrer, and tbe plaintiff appealed.

Grissom & Marshburn and Cooley & Bone for plaintiff.

Nimocks & Nimocks and Bye & Clark for defendants.

Adams, J.

Under our practice all demurrers are special and may be pleaded only for the causes specified in tbe statute. O. S., 511, 512; Love v. Comrs., 64 N. C., 706. Tbe causes for which tbe present defendants demur are the improper joinder of parties and causes, tbe plaintiff’s failure to state a cause of action, and “no jurisdiction” of tbe person of one of tbe defendants, or of tbe subject of tbe action.

Tbe demurrer admits all tbe allegations in tbe complaint; and in giving tbe complaint a liberal interpretation we must adhere to tbe oft-repeated rule tbat if it sets out facts sufficient to constitute a cause of action, or if facts sufficient for tbat purpose can fairly be gathered from it tbe pleading will stand, because tbe plaintiff is entitled to tbe benefit of every presumption and of every reasonable intendment. S. v. Bank, 193 N. C., 524; Seawell v. Cole, 194 N. C., 546.

The demurrer contains tbe recital tbat tbe defendants “enter a special appearance and demur to tbe complaint.” Tbe feme defendant undertook to amend the original demurrer by stating tbat she entered a special appearance and moved to dismiss the action as to her, for the reason that she was a resident of Baltimore and not subject to the jurisdiction of the court.

If the feme defendant meant that she had been brought into court by defective process or defective service she should have made a special appearance in the beginning and questioned the court’s jurisdiction of her person. Instead of doing this she joined her codefendants in filing a demurrer to the sufficiency of the complaint and thereby entered a general appearance. The demurrer previously filed was addressed to the merits of the action and constituted a full appearance and submission to the jurisdiction of the court. Motor Co. v. Reaves, 184 N. C., 260; Scott v. Life Asso., 137 N. C., 515; N. C. Pr. & Pro., sec. 328.

Morris Bank took out letters of administration in Cumberland'County, and the defendants demur on the ground that the complaint is an attack upon the administrator’s final account, over which, it is contended, the Superior Court of Nash County has no jurisdiction. Whether the object of the action is exclusively to impeach the final account may be doubted; but if it is, we must keep in mind the clear distinction between jurisdiction and venue. Jurisdiction implies or imports the power of the court; venue the place of action. Prior to 1868 venue was jurisdictional. Killian v. Fulbright, 25 N. C., 9; Smith v. Morehead, 59 N. C., 360. Under the present practice it is otherwise. Venue may now be waived because it is not jurisdictional, and is available to the object-, ing party, not by demurrer, but by motion in the cause. C. S., 470; Rector v. Rector, 186 N. C., 618; Clark v. Homes, 189 N. C., 703.

There is another point. The complaint shows that the plaintiff resides in Nash County and that all the defendants are nonresidents of the State. Neither of them resides in Cumberland County. If the action be treated as a suit upon the official bond of the administrator the defendants will be confronted by the following statute: “All actions upon official bonds or against executors and administrators in their official capacity must be instituted in the county where the bonds were given if the principal or any surety on the bond is in the county; if not, then in the plaintiff’s county.” C. S., 465.

The second, third, fourth, and sixth grounds of demurrer invoke matters which do not appear on the face of the complaint and ignore the specific allegation that the alleged agreement of the parties and the plaintiff’s assignment of his interest were procured by false and fraudulent representations. Sandlin, v. Wilmington, 185 N. C., 257; Hamilton v. Rocky Mount, 199 N. C., 504.

The complaint does not reveal such a misjoinder of parties and causes as requires a dismissal of suit. Shuford v. Yarborough, 197 N. C., 150. As pointed out in Trust Co. v. Peirce, 195 N. C., 717, the complaint states a connected story, forming a general scheme and tending to a single end. The plaintiff may unite in the same complaint several causes of action if they ail arise out of the same transaction or a transaction connected with the same subject of action. C. S., 507.

The judgment sustaining the demurrer is reversed. When they answer the complaint the defendants will have opportunity to set up all the defenses on which they rely. Judgment

Reversed.