Murchison National Bank v. McCormick , 192 N.C. 42 ( 1926 )

Defendant's demurrer, ore tenus, first made in this Court, for that the complaint fails to state facts sufficient to constitute a cause of action, cannot be sustained. It affirmatively appears upon the face of the complaint that this action was not begun against defendants, upon their contract of guaranty, until six months had elapsed after the maturity of the indebtedness for which plaintiff alleges in its complaint defendants are liable. In the contract alleged in the complaint, a copy of which is attached thereto as Exhibit A, the only condition imposed upon plaintiff is that it "shall upon default in the payment of the above obligation grant to the Merchants Farmers Bank and to the signers of this instrument a period of six months in which to collect and liquidate the collateral notes and other securities herein pledged before this obligation shall be due and payable." It is specifically alleged in the complaint that "at the time of the institution of this action, all of the said notes were more than six months past due." The parol agreement which defendants set up in the answer is not alleged in the complaint, and therefore cannot be considered in ruling upon defendants' demurrer.

A careful reading of the answers in this action discloses no plea in bar of plaintiff's "entire cause of action," as alleged in the complaint. We therefore hold upon authority of Bank v. Evans, 191 N.C. 535; Lumber Co.v. Pemberton, 188 N.C. 532; and Alley v. Rogers, 170 N.C. 538, that the order of compulsory reference was not erroneous.

The order is affirmed. It is clear, from a reading of the pleadings in this action, that it is a proper action for trial by a referee. Defendants having excepted to the order, cannot be deprived of their constitutional right to have the issues of fact tried by a jury provided they preserve this right as provided by law. C. S., 573. They have no just ground for complaint, certainly, in law, that if issues are hereafter submitted to a jury, they will be determined in accordance with the statute enacted by the General Assembly of this State. (C. S., 573 (5), which provides that upon the trial of the issues, after a compulsory reference, only the "written evidence taken before the referee" shall be submitted to the jury.

We do not deem it necessary or advisable to discuss in this opinion the merits of this appeal further or to set out in detail the matters set up in the answers, which defendants contend constitute pleas in bar. It is apparent from the amount involved and the defenses relied upon, that many questions will arise during the course of the litigation. These questions ought not to be considered or discussed by this Court until they are properly presented to us upon appeal.

Having disposed of this appeal upon its merits, the motion for the writ of prohibition need not further be considered. It is dismissed for the reason that defendants can no longer be interested in pressing their motion. The order of compulsory reference is

Affirmed.