Bechtel v. Weaver, 202 N.C. 856 (1932)

June 15, 1932 · Supreme Court of North Carolina

202 N.C. 856

JOHN A. BECHTEL v. D. J. WEAVER et al.

(Filed 15 June, 1932.)

Appeal by plaintiff and defendants from Harding, J., at September Term, 1931, of Haywood.

Civil actipn to declare foreclosure of deed of trust void.

Plaintiff brought an action to enjoin foreclosure under deed of trust. Failing in that suit, and while it was still pending, he brings this action to declare the foreclosure void.

The defendants filed a plea in abatement and interposed a demurrer on the ground that the complaint does not state facts sufficient to constitute a cause of action. The plea in abatement was overruled, .and the demurrer was sustained. Both sides appeal.

Joseph W. Little for plaintiff.

Heazel, Shuford & Hartshorn for defendants.

Per Curiam.

If it be conceded that the defendants’ plea in abatement should have been sustained (Brown v. Polk, 201 N. C., 375, 160 S. E., 357), still the correct result has been reached in another way, and the judgment will not be disturbed. Bank v. McCullers, 201 N. C., 440; Rankin v. Oates, 183 N. C., 517, 112 S. E., 32. “A new trial will not he granted when the action of the trial judge, even if erroneous, could by no possibility injure the appellant.” Butts v. Screws, 95 N. C., 215.

This disposition of the matter renders it unnecessary to consider defendants’ appeal.

Affirmed.