Ray v. . Ray , 41 N.C. 355 ( 1849 )

The bill was filed against two, one of whom put in answer, to which replication was taken, and the other put in a demurrer, which was set down for argument; and the case was then sent to this court. The cause cannot be entertained, we think in its present state, but must be remanded. Until the act of 1848, ch. 30, no suit could be brought to this Court upon a plea or demurrer, unless by (356) appeal; and if the decree were interlocutory, the cause, under the act of 1831, ch. 34, was not removed, but only the particular point involved in the appeal, and on that this Court certified an opinion to the court on the circuit. Littlejohn v. Williams 17 N.C. 380. The act of 1848, however, allows the removal of causes before a decree, upon a plea or demurrer, when set down for argument, with the view, no doubt, to avoid incurring unnecessarily a set of costs in each court, and also, chiefly, to avoid delay in the decision of a point of law which may in limine determine the litigation. When those purpose can be answered by it, the provision will operate beneficially enough. But it cannot be supposed the Legislature intended to apply it in any case in which it would not have those effects, but others directly opposite. Such would be the consequence of entertaining this case. It would produce delay, without diminishing the expense. The act does not, like that of 1831, authorize the plea or demurrer to be brought here, and in the meanwhile the cause to go on in the court below, but "the cause is to be removed into the Supreme Court."

The Court of equity can do nothing more in the case, because it is taken from it entirely. Neither can this Court take the steps necessary to prepare the cause for hearing upon the bill and answers; for, certainly, the act was not intended to repeal the important provision of the act of 1818, which withholds from this Court jurisdiction of suits in equity at issue until they shall have been prepared to be heard here by being set down in the court below. That would, in effect, indirectly confer on us original chancery jurisdiction, contrary, unquestionably, to the legislative intention. It is plain, therefore, when answers or pleas are put in by some defendants and replications are taken, that the removal of the cause into this Court for the argument of the plea or demurrer of another defendant, instead of speeding the cause or saving costs, would produce the opposite result; for, before the judgment on the plea or demurrer, nothing whatever could be done (357) anywhere, as between the other parties; and after the judgment and the costs incurred in obtaining it, the cause would have to be remanded for further proceedings in the court of equity, beginning, as between the other parties, at the very point which they had reached when the cause was taken from that court a year previously, perhaps, or more. The act ought not to be construed so as thus to arrest all possibility of progress in the cause as between those who put it at issue on the facts, and to whom it may be of the utmost consequence to preserve their proofs by taking them immediately; and it seems apparent that the case within the mischief and, we conjecture, in the mind of the writer of the act, was that in which the decision upon the sufficiency of the plea or demurrer would determine the whole cause; as, where there is but one defendant, or, if more, they all plead or demur, and the pleas and demurrers are all set down for argument. In such cases as those only can the good ends be answered which the act was designed to effect. But in cases situated like the present, "the removal" to this Court cannot fail to produce delay and in most cases also increase the costs; and therefore it is not within the purview of the act. The cause must be remanded.

PER CURIAM. Ordered accordingly.

(358)