Hood v. Elder Motor Co., 209 N.C. 303 (1936)

Jan. 22, 1936 · Supreme Court of North Carolina

209 N.C. 303

GURNEY P. HOOD, Commissioner of Banks, v. ELDER MOTOR COMPANY et al.

(Filed 22 January, 1936.)

1. Pleadings E d: Appeal and Error J a—

Whether the court should allow plaintiff to amend after sustaining a demurrer to the complaint is a matter in its sound discretion, and its ruling thereon is not reviewable. C. S., 515.

2. Baúles and Banking H d—

In an action by the statutory receiver on a note executed to the bank, defendant maker set up a counterclaim for the penalty for usury in a sum in excess of the note, and alleged demand for its payment and refusal by the receiver. Held: The receiver’s demurrer to the counterclaim was properly overruled.

Devin, J., took no part in the consideration or decision of this case.

Appeal by plaintiff from Devin, J., at July-August Term, 1935, of Chatham.

Civil action to recover on promissory note.

Defendants denied liability and set up counterclaim for usury in excess of tbe note sued upon, but omitted to allege that defendants had presented tbeir claim to tbe liquidating agent, or Commissioner of Banks, and same bad been rejected as required by C. S., 218 (c), subsections 10 and 11.

Demurrer ore tenus interposed to counterclaim. Demurrer sustained with privilege to amend. Plaintiff excepts.

Counterclaim amended. Demurrer ore tenus to counterclaim as amended; overruled; exception.

Plaintiff appeals, assigning errors.

U. L. Spence and W. D. Sabiston, Jr., for plaintiff.

Daniel L. Bell for defendants.

Stacy, C. J.

Whether tbe defendants should have been allowed to amend tbeir counterclaim, after demurrer sustained, was a matter addressed to tbe sound discretion of tbe trial court, and is not reviewable on appeal. C. S., 515; McKeel v. Latham, 203 N. C., 246, 165 S. E., 694; Morris v. Cleve, 194 N. C., 202, 139 S. E., 230.

There was no error in overruling tbe demurrer to tbe counterclaim as amended. Griffin v. Bank, 205 N. C., 253, 171 S. E., 71. Indeed, it might well have been disregarded (C. S., 512), or treated as a motion to dismiss (Elam v. Barnes, 110 N. C., 73, 14 S. E., 621), from tbe refusal of which no appeal lies. Seawell v. Cole, 194 N. C., 546, 140 S. E., 85; Plemmons v. Improvement Co., 108 N. C., 614, 13 S. E., 188.

Affirmed.

Devin, J., took no part in tbe consideration or decision of this case.