Davidson v. . Elms , 67 N.C. 228 ( 1872 )

The action was brought in the name of R. F. Davidson, trustee, to the use of Allison. The note upon which it is founded is fully set out, with the endorsement thereon, in the opinion of the Court.

The case was tried before a Justice of the Peace and testimony was introduced by each party upon the merits. Judgment was rendered for the plaintiff, and defendant appealed to the Superior Court.

When the case was called in the Superior Court, the defendant moved to dismiss for want of proper parties. The motion was sustained and the suit dismissed. Plaintiff appealed to the Supreme Court. This was a civil action commenced before a Justice of the Peace, upon a bond, in the following words and figures:

"On or before 1 June next, we promise to pay Allison and Daniels, $125, value received, for hire of negro boy, Sam. I further promise to give him the usual clothing, say one winter suit, hat, blanket, etc., 1 January, 1858." Upon the back of this bond is the following (229) endorsement: "Pay to R. F. Davidson, trustee for John R. Daniels, for Allison Daniels."

This being a civil action, commenced before a Justice of the Peace, it is unnecessary to enquire, whether under our former system of pleading this action could be sustained in its present form. Sec. 57, C. C. P., provides that in such a case as this, the trustee may sue in his own name. But it is not necessary to discuss this question further, for Mebane v. Mebane,66 N.C. 334, cited for the plaintiff, decides the very question now under consideration. It is proper further to remark, that the Court ought not to have dismissed, the suit, as the objection if available should have been taken by demurrer, sec. 95, C.C.P. A party can not be permitted to lie by, and permit a judgment to be rendered against him before a Justice of the Peace without making an objection, take an appeal to the Superior Court, and then when the case is about to be tried, for the first time take the objection that the suit is in the name of the wrong party. By such conduct, the defendant will be considered as having waived the objection. But, however that may be, the objection could not have availed the defendant, if taken in apt time, for the reason that the suit was properly constituted.

PER CURIAM. Reversed.

Cited: Love v. Johnson, 72 N.C. 420; Wilson v. Pearson, 102 N.C. 314.

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