PRACTICE — REPLY — VERIFICATION — COUNTERCLAIM.
1. Inasmuch as every allegation of new matter in an answer not relating to a counterclaim is deemed to be controverted by the adverse party as upon a direct denial or avoidance (section 268 of The Code), no replication is necessary, and a failure to verify a replication, if filed, is immaterial.
2. To constitute a counterclaim, the demand must be one on which a separate action would lie.
A replication to the answer was filed, but was not verified. His Honor overruled the exceptions to the report of referee (527) and gave judgment for the plaintiff, and defendant appealed.
FAIRCLOTH, C. J.
This action is instituted to recover from the defendant money collected by him as an attorney for plaintiff. The matter was referred by consent, and to the report several exceptions are filed, all pointing to the findings of fact, which this Court cannot review. The account covers a period of several years. Only one exception is relied upon before this Court, and, looking at the (532) report, we can see no error in that. The answer is verified but the replication is not. We can see no need for the replication in this case, as every allegation of new matter in the answer not relating to a counterclaim is to be deemed controverted by the adverse party, as upon a direct denial or avoidance, as the case may require. The Code, sec. 268. It was suggested here that a part of defendant's answer was a counterclaim, and, not being denied by a verified replication, the defendant was entitled to a credit in that respect. It is beyond our ability to see how a counterclaim could lie to recover money already in the defendant's hands, sought to be collected by the plaintiff.
Unless a defendant has some matter existing in his favor and against the plaintiff on which he could maintain an independent action, such claim would not be a counterclaim. We see no error in the trial below.
Affirmed.
Cited: McLamb v. McPhail, 126 N.C. 221; Oldham v. Rieger, 145 N.C. 260.