FOCHTMAN v. GREER, N.C., Judgment, Law, casemine.com

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Attorney(S)

W. B. Austin for plaintiff. W. R. Bauguess for defendant.

Judges

PER CURIAM.

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Smart Summary

Factual and Procedural Background

Plaintiff brought an action against defendant on a promissory note before a justice of the peace. At that time, a warrant of attachment was issued and service was made by publication. At trial before the justice of the peace, defendant, through counsel, made a special appearance and admitted the correctness of the account but moved to vacate the attachment on the ground that he was a resident of the State; this motion was denied. Judgment was rendered in favor of plaintiff. Defendant appealed to the Superior Court. Subsequently, Emma Greer and Fay Graham intervened, claiming ownership of certain personal property attached in the action. The issue of ownership was tried before a jury in the Superior Court, which ruled against the interveners. The attorney who represented defendant before the justice of the peace also represented the interveners in the Superior Court.

Legal Issues Presented

Whether, on appeal from a justice of the peace to the Superior Court (where the trial is de novo), the defendant may plead the statute of limitations after having admitted the correctness of the account in the justice court.
Whether the trial court has discretion to permit or deny the defendant's plea of the statute of limitations under these circumstances.
The burden of proof regarding interveners' claims to attached personal property.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Sugg v. Engine Co., 193 N.C. 814	The burden of proof is upon the intervener in an action.	The court applied this precedent to place the burden of proof on the interveners regarding their claim to the attached property.
Woodard v. Milling Co., 142 N.C. 100	Discretion of the trial court in permitting pleas such as statute of limitations on appeal from justice of the peace.	The court found this case consistent with its holding that the trial court has discretion to allow or deny the plea of the statute of limitations under the facts presented.
White v. Peanut Co., 165 N.C. 132	Same as above regarding trial court discretion on statute of limitations pleas.	The court cited this case to support its position that the discretion exercised below was proper and not in conflict with precedent.

Court's Reasoning and Analysis

The court noted that on appeal from a justice of the peace, the Superior Court conducts a trial de novo, meaning a new trial of the entire matter. However, the defendant, having admitted the correctness of the account at the justice of the peace level, sought to plead the statute of limitations in the Superior Court. The court explained that the statute of limitations must be pleaded to be available as a defense. Under the circumstances, the trial judge has discretion to allow or deny such a plea. The defendant's prior admission of the debt at the justice court stage undermined his attempt to assert the statute of limitations defense later. The court emphasized the principle that a party cannot "blow hot and cold in the same breath," rejecting inconsistent positions. The burden of proof regarding the interveners’ claim was properly placed on them, consistent with precedent. The court found no error in the lower court’s refusal to permit the statute of limitations plea and affirmed the judgment.

Holding and Implications

No error.

The court affirmed the judgment of the Superior Court, upholding the trial court's discretion in refusing to allow the defendant to plead the statute of limitations after admitting the debt in the justice of the peace court. The interveners’ burden of proof was confirmed. This decision directly affects the parties by finalizing the judgment but does not establish new legal precedent beyond affirming existing principles regarding trial de novo appeals and judicial discretion on pleas of limitation.

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L.H. FOCHTMAN v. WALTER GREER.

1. Limitation of Actions — Pleadings — Courts — Justices of the Peace — Appeal — Trial de Novo — Discretion.

An appeal from a court of a justice of the peace is tried de 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's right to set it up.

2. Actions — Interveners — Burden of Proof.

The burden of proof is upon the intervener in an action.

PER CURIAM.

Plaintiff 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 the action. This issue was tried in the Superior Court. The jury decided against the interveners. The attorney who appeared in the justice of the peace's court for defendant represented the interveners in the Superior Court.

The burden of the issue to be answered by the jury was upon the interveners. Sugg v. Engine Co., 193 N.C. p. 814.

From the record we find that in the justice of the peace's court defendant "admitted the correctness of the account." In the Superior Court defendant offered to plead the statute of limitation, through the same attorney who represented the interveners and who had entered a special appearance for defendant in the justice of the peace's court and moved to vacate the attachment on the ground that defendant was a resident, but admitted the correctness of the account. The court refused to allow this to be done. On an appeal to the Superior Court the trial is de novo, "a new trial of the whole matter." C. S., 661. The defense of the statute of limitation, to be available, must be pleaded. 8 Encyc. Dig., N.C. Reports, p. 887, sec. 134, and cases cited.

Defendant did not plead the statute of limitation, but admitted in the justice of the peace's court the correctness of the debt. The leave to file answer in the Superior Court and plead the statute of limitations, under the facts and circumstances of this case, was in the discretion of the court below. Defendant cannot "blow hot and cold in the same breath."

The 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 the position here taken. We find

No error.

FOCHTMAN v. GREER