Johnson v. . Finch , 93 N.C. 205 ( 1885 )

The plaintiff brought this action to recover damages from the defendant for maliciously, and without probable cause, having him arrested under a warrant of arrest granted by a justice of the peace in a civil action wherein the present plaintiff was defendant and the present defendant was plaintiff.

The complaint is not only very informal but it is defective in respect to a matter of substance. It fails to allege in terms or in effect that the action in which the warrant of arrest was granted was terminated before this action was begun. It is necessary that such allegation should be made in alleging such a cause of action. Howell v. Edwards, 30 N.C. 516; Hewitv. Wooten, 52 N.C. 182; Hatch v. Cohen, 84 N.C. 602.

It is to be observed that the facts stated in the complaint do not wholly fail to disclose a cause of action; indeed, they informally constitute a good one except in the respect mentioned above. The case is therefore quite different from one in which the facts stated wholly fail to state or constitute a cause of action. In the latter case the plaintiff (208) cannot maintain his action at all — he states no cause of action, either perfectly or imperfectly, defectively, or otherwise; there is nothing alleged of which the court can take jurisdiction and touching which a judgment or relief can be granted, and therefore the defendant may demur, or at any time, even in this Court, move to dismiss the action. It is, therefore, that The Code, after prescribing specifically in sec. 239, sundry causes for which the defendant may demur to the complaint, further prescribes in sec. 242 that "if no such objection be taken by demurrer oranswer, the defendant shall be deemed to have waived the same, exceptingonly the objection to the jurisdiction of the court, and the objection thatthe complaint does not state facts sufficient to constitute cause ofaction." As to the two exceptions thus specified, there can be no waiver, and in these respects objections may be made at any time. In such cases there is an absence of jurisdiction, or an absence of anything to which the jurisdiction of the court can attach. Love v. Comrs., 64 N.C. 706; Tuckerv. Baker, 86 N.C. 1.

But it is otherwise when it appears in the complaint that a cause of action is alleged, though imperfectly or defectively, in one or more respects. Regularly such defect ought as soon as discovered to be corrected by amendment, whether or not objection on that account be taken in any way by the defendant, and after demurrer sustained as well as after the answer has been filed; otherwise when the defect is in respect to a matter material that must be alleged; it will be fatal on the trial, or a motion in arrest of judgment, except in the cases when such defect shall, as above indicated, be waived by failing to demur or take the objection in the answer. Generally, however, if the defendant shall allege or admit in his answer the material matter or facts omitted in the complaint this will aid the complaint and cure the defective statement of the cause of action. This is so because it will thus appear in, and the court can see from, the pleadings that a sufficient cause of action is presented in the record to warrant a proper judgment, and as well (209) because the defendant admits not necessarily the cause of action, but does admit the matter or facts omitted from the complaint.Garrett v. Trotter, 65 N.C. 430; Pearce v. Mason, 78 N.C. 37; Wilsonv. Sykes, 84 N.C. 215; Halstead v. Mullen, post, 252.

It may be added that if the defendant fails to take advantage of formal defects in apt time the answer will be treated as a waiver thereof. Wilsonv. Sykes, supra.

By what has been said it is not to be understood that statements and omissions of facts by the defendant in his answer can aid a defective statement of a cause of action in the complaint, however defective. The nature and purpose of the action must appear in the complaint itself — only defects of statements, omissions of minor matters — of something in detail and essential in completeness — can be cured by the answer in the way indicated.

Much less can the answer supply the plaintiff with a cause of action. Hence Chief Justice Pearson said, in Rand v. Bank, 77 N.C. 152: "The plaintiffs cannot abandon the averments of the complaint and fall back upon a collateral statement of facts set out in the answer," and this was afterwards approved in Grant v. Burgwyn, 88 N.C. 95, and McLaurin v.Cronly, 90 N.C. 50. The plaintiff must allege a cause of action, such as the court can see in the pleadings, to be admitted in the answer or proven on the trial.

The answer of the defendant in this case, as was admitted on the argument, was very informal and was incautiously prepared. But it in effect admits that the action in which the warrant of arrest was granted was terminated before this action was brought. It states in terms that the defendant (the present plaintiff) was not under arrest for longer than one hour when he was released and discharged; and, after much cumulative explanation, the defendant admits in the answer that he had no cause of action against the plaintiff, that he brought the action by inadvertence and mistake, and he tenders compensation for any inconvenience the plaintiff may have sustained, including costs, (210) etc.

The spirit and drift of the answer amount to an admission that the defendant's action against the plaintiff, including the warrant of arrest, was unfounded — that he had abandoned it, and it was terminated at once upon his discovery of the error into which he had fallen by inadvertence and mistake. It must be taken that he admitted that the action was ended before the present one was begun. He thus aided the complaint and cured the defect in the statement of the cause of action therein alleged.

The court below ought not, therefore, to have dismissed the action but, on the contrary, ought to have proceeded to try it upon its merits.

There is error. The judgment must be reversed and further proceeding had in the action according to law. To that end let this opinion be certified to the Superior Court of Davidson County.

Error. Reversed.

Cited: Willis v. Branch, 94 N.C. 147; Warner v. R. R., ibid., 257;McKinnon v. McIntosh, 98 N.C. 92; Planning Mills v. McNinch, 99 N.C. 520;Bowling v. Burton, 101 N.C. 181; Barfield v. Turner, ibid., 358;Knowles v. R. R., 102 N.C. 63; Warlick v. Lowman, 103 N.C. 126; Norrisv. McLain, 104 N.C. 160; Harris v. Sneeden, ibid., 375, 7; Baker v.Garris, 108 N.C. 225; Conley v. R. R., 109 N.C. 697; Loughran v. Giles,110 N.C. 425; Wiggins v. Kirkpatrick, 114 N.C. 301; Lockhart v. Bear,117 N.C. 302; Mizzell v. Ruffin, 118 N.C. 71; Shute v. Austin, 120 N.C. 442;Harrison v. Garrett, 132 N.C. 178; Williams v. Smith, 134 N.C. 253;Wright v. Ins. Co., 138 N.C. 491; Eddleman v. Lentz, 158 N.C. 70;Ricks v. Brooks, 179 N.C. 209; Lassiter v. Adams, 196 N.C. 712; Cole v.Wagner, 197 N.C. 695; Sentelle v. Board of Education, 198 N.C. 391.