Opinion
(Decided 15 March, 1898.)
Action on Note — Endorser — Practice — Frivolous Answer.
1. A frivolous answer is one that raises no issue or question of fact or law pertinent or material in the action.
2. Where the endorser of a note was sued thereon and in his answer, not denying the execution of the note or his endorsement, averred that in another action in the same court, to which plaintiff was not a party, a referee had reported that defendant was liable for the same debt as endorser and that certain property involved in such other action should be applied before judgment was granted on his complaint: Held, that such answer was frivolous and the plaintiff was entitled to judgment on his verified complaint.
ACTION, heard before Robinson, J., at October Term, 1897, of WAKE, on a motion for judgment upon the ground that the answer was frivolous.
Spier Whitaker for plaintiff. (229)
Shepherd Busbee for defendant.
The plaintiff moved for judgment upon the ground that the answer filed by the defendant J. B. Brewer was frivolous. The (228) defendant Brewer moved that the Raleigh Paper Company be made a party to the action. Motion overruled. Exception by defendant Brewer.
The defendant Brewer also moved that the action be dismissed because the complaint did not state facts sufficient to constitute a cause of action, in that the complaint did not allege that the semi-annual installments of interest on the notes mentioned in the complaint had not been paid. Motion overruled. Defendant Brewer excepted.
His Honor granted judgment as prayed by the plaintiff, and defendant Brewer excepted and appealed.
This action is on a note payable to plaintiff's testator and endorsed by the defendant Brewer. The defendant, not denying the execution of the note nor his endorsement thereon, answering, says that in another action in the same court ( Belvin v. Paper Co., 123 N.C. 138), to which the plaintiff is not a party, a referee has reported that defendant is liable for the same debt as endorser, and that certain property involved in the Belvin suit should be applied before plaintiff is entitled to judgment in this action. Whether the referee's report will be confirmed or not and whether any judgment will be rendered thereon does not appear, nor is it alleged, and, whether the matter pleaded is true or not, it does not concern the plaintiff, who is not a party thereto. The plaintiff's cause of action is admitted, and the special plea does not raise a material issue, and the answer was properly held to be frivolous.
A frivolous answer is one that raises no issue or question of fact or law pertinent or material in the action. Weil v. Uzzell, 92 N.C. 515. The answer being of no effect, the motions of defendant cannot be allowed and plaintiff was entitled to judgment on his verified complaint. Code, 388.
Affirmed.
(230)