White v. Perry

171 S.E.2d 56 (1969) 7 N.C. App. 36

Clarence Sawyer WHITE
v.
Rayford Wilson PERRY.

No. 696SC418.

Court of Appeals of North Carolina.

December 17, 1969.

Leroy, Wells, Shaw & Hornthal, by L. P. Hornthal, Jr., Elizabeth City, for defendant appellee.

Jones, Jones & Jones, Ahoskie, by A. B. Harrington, Jr., and Joseph J. Flythe, Ahoskie, for plaintiff appellant.

HEDRICK, Judge.

The exception to the signing and entry of the judgment presents for review the face of the record proper which includes whether the facts found or admitted support the judgment. Carolina Beach Fishing Pier, Inc. v. Town of Carolina Beach, 274 N.C. 362, 163 S.E.2d 363 (1968).

Appellant in his brief states "Plaintiff does not question the proposition that pleading a release through a further reply can constitute a ratification of a settlement and bar a plaintiffs cause of action." We hold that the pleading of the release by the plaintiff in the "further reply" constituted a ratification by the plaintiff of the settlement made by his insurance carrier with the defendant. Keith v. Glenn, 262 N.C. 284, 136 S.E.2d 665 (1964).

This leaves us with the proposition of whether the withdrawal by the plaintiff of the "further reply" constituted a revocation of the ratification. The answer is no. In Norwood v. Lassiter, 132 N.C. 52, 43 S.E. 509, it is said: "When a party has the right to ratify or reject, he is put thereby to his election, and he must decide, once and for all, what he will do; and when his election is once made it immediately becomes irrevocable. This is an elementary principle. Austin v. Stewart, 126 N.C. 525, 36 S.E. 37." See also Breckenridge, "Ratification in North Carolina", 18 N.C.L.Rev. 308. Although the "further reply" had been withdrawn as a pleading, it was proper for Judge Bundy to consider it in making his findings of fact and conclusions of law. Davis v. Morgan, 228 N.C. 78, 44 S.E.2d 593 (1947).

Appellant relies on Bongardt v. Frink, 265 N.C. 130, 143 S.E.2d 286 (1965), which is readily distinguishable. In that case, after the court permitted the plaintiff to withdraw the reply pleading the release, the defendant did not amend its answer to allege the filing of the reply as a plea in bar.

Appellant contends that the judgment entered by Bundy, J., overruled the order of Hubbard, J., dated 25 November 1968. We do not agree.

The "further reply" was withdrawn when Judge Hubbard overruled defendant's original demurrer, therefore, there was not, and could not have been, any final ruling upon the merits of the demurrer. Obviously, Judge Hubbard's order contemplated the filing by the defendant of an amended answer setting up the ratification of the release by the plaintiff as a plea in bar to the plaintiff's cause of action.

The sustaining or overruling by a superior court judge of a demurrer with leave to amend the pleading does not preclude another superior court judge from thereafter ruling on a demurrer to the amended pleadings. 2 Strong, N.C. Index 2d, Courts, Sec. 9, p. 447; Simpson v. Plyler, 258 N.C. 390, 128 S.E.2d 843 (1963).

The findings of fact support the judgment entered.

Affirmed.

MALLARD, C. J., and MORRIS, J., concur.