Opinion
(August Term, 1848.)
1. In England, where exceptions are filed to an answer to an injunction bill, the exceptions must be disposed of before a motion to dissolve the injunction can be heard.
2. But in this State, owing to the shortness of the terms of our courts, the practice is different, and the exceptions and the motion to dissolve must be heard together.
3. Where a defendant moves to dissolve an injunction, and the motion is refused, and afterwards, by permission of the court, he amends his answer, he is at liberty again to move the dissolution.
APPEAL from an interlocutory order directing an injunction to be continued to the hearing made at Spring Term, 1848, of BUNCOMBE Court of Equity, Battle, J., presiding.
N.W. Woodfin and Gaither for plaintiff.
Avery for defendant.
By an original and supplemental bill the plaintiff states that (234) in 1836 he became indebted by note to J. P. Henderson, and that the defendant was his surety therefor; that the same was assigned to one Jacob Ramsour, and that the defendant took up that note from Ramsour and in discharge thereof gave his own note to Ramsour for $345; that in December, 1841, the plaintiff paid to the defendant the sum of $345 on account of the debt, but that, having great confidence in the defendant, he took no receipt therefor, nor called any witness to the payment. The bill further states that in 1840 or '41 the plaintiff purchased from the defendant a sulky and trunk, at the price of $120, and that in 1842 the defendant paid as his surety to one Slade $242 and as the executor of one John Motz held a bond of the plaintiff's for about $160, making together the sum of $522 in which the plaintiff was indebted to the defendant, exclusive of a balance of about $45 due on account of the debt to Ramsour; that the defendant was indebted to the plaintiff in the sum of $150 for a cow and a calf, $100 for that amount paid by the defendant to one James M. Edney, and also in the sum of $75 for a demand he had against his testator, John Motz, which being deducted from the debts to the defendant would leave a balance of about $242 in December, 1842. The bill further states that at that time the defendant called on the plaintiff to execute to him his bond for $426, saying that he found from his accounts and papers that amount to be due him; that the plaintiff objected to giving a bond without a settlement, as he did not believe his debt was so large; but that the defendant assured him it was, and insisted on taking a bond, saying at the same time that, though he had not then leisure to make the calculations and go into a settlement, yet he would at an early day produce all the papers and make a full settlement, and if any mistake should be found in the bond, he would then correct it. The bill further states that, in reliance on the defendant's integrity and on those promises, the plaintiff (235) executed his bond to the defendant on 10 December, 1842, for $426, as required, and at the same time placed in his hands as collateral security therefor sundry notes given to the plaintiff by other solvent persons, as follows:
William Welch's bond ______________________________ $75.00 Elizabeth Moody ___________________________________ 75.00 John Hamyent ______________________________________ 40.00 Jonathan McClure __________________________________ 50.00 J. Redman _________________________________________ 25.00 Burganer and others _______________________________ 40.00 M. Phifer _________________________________________ 160.00 ------- $465.00
With the bill is exhibited a receipt given by the defendant for those notes, in which he says: "I am to collect as much of them as I can and give said Edney credit on a note I hold on him for $426; if there be more than that sum collected, I am to pay the overplus to the said Edney, and if that amount be not collected, then the said Edney is to be liable to me for the balance; the credits to be given as the notes are collected and interest to be calculated on both sides." The bill further states that in December, 1841, the plaintiff pledged to the defendant a gold watch, worth $160, as security for the debts he owed him. The bill then states that the plaintiff has often urged the defendant to make the promised settlement, in order that it might be ascertained what was really due to the defendant, and also urged him to collect the notes so placed in his hands or return them to the plaintiff; but that the defendant refused to come to any further settlement or to give the plaintiff credit for any of the said notes, pretending that the debtors were insolvent and that he was unable to collect any sum on them, whereas the plaintiff charges that they were all solvent and that the debts have either been collected by the defendant or, if otherwise, that they have been lost by his laches; and at other times pretending that (236) the plaintiff was indebted to him for money which he paid as surety for the plaintiff to one M. Quiggle on justice's judgments for about $170, whereas the defendant procured the constable to seize the plaintiff's property on executions on those judgments to compel the plaintiff to pay them, and he did himself pay them and took up the judgments and executions from the constable. The bill then further states that the defendant instituted three suits at law against the plaintiff, one on the bond for $426, a second on the note first mentioned, as taken up from Ramsour, and the third on the bond for about $160, payable to one John Motz, deceased, and which the plaintiff avers to have been included in the bond for $426; and that the plaintiff recovered judgments in the two former actions for the whole principal and interest, without any deduction. The bill prays a discovery as to the several sums claimed by the defendant, and the origin and consideration of the demands on which the suits were brought, and as to the circumstances under which the bond for $426 was given, and also what steps had been taken to collect the notes which the plaintiff deposited with the defendants, and what had been collected thereon, and if any parts remained uncollected, what parts, and why they were not collected; and generally a discovery upon all the matters alleged in the bill upon which various interrogations are founded; and the bill further prays that the accounts between the parties may be settled under the direction of the court, and the true sum in which the one indebted to the other ascertained, and the plaintiff declared to be entitled to the watch pledged by him, and also the residue of said notes after the satisfaction of the sum that may be found due to the defendant, if any, and for an injunction against the judgments at law.
The original bill was filed 16 February, 1847, while the action at law was pending, and on it no injunction was moved for. On 5 April following the defendant put in an answer, to which the plaintiff (237) took several exceptions. At the same time the supplemental bill was filed, and therein were stated the recoveries at law, and various others of the matters already mentioned. On 2 October following, the defendant put in a further answer, and to that the plaintiff also took several exceptions. Upon his answer the defendant moved to dissolve the injunction, but the court overruled the motion, and directed that the defendant might amend his answer. On 14 April, 1848, the defendant put in an amended and further answer to the bill and supplemental bill, to which no exception was taken by the plaintiff, and the cause came on upon the original and supplemental bill, the exhibits and the answers of the defendant, and his motion to dissolve the injunction. But the court refused the motion, and ordered the injunction to be continued to the hearing, from which the defendant was allowed an appeal.
The answers state that one of the judgments at law was recovered on a bond given by the plaintiff to the defendant for $345.59, dated 10 March, 1839, and payable one day after date; another on a bond for $426, dated 10 December, 1842, and mentioned in the bill. They state the consideration of the first bond to be as follows: That the plaintiff was indebted to J. P. Henderson upon a judgment in 1839, and, being pressed thereon for the money, the plaintiff prevailed on the defendant to assume the debt for him to Henderson, who was willing to take the defendant and discharge the plaintiff, and he agreed to secure the defendant from loss therefrom by executing to him his bond for the sum then due to Henderson and also a mortgage for two horses and a small library. That in execution of the agreement, the defendant, on 10 March, 1839, took upon himself exclusively the debt to Henderson, then amounting to $345.49, and on 15 February, 1840, he paid Henderson the sum of $363.47 in satisfaction of the principal and interest (238) then due to him. That the plaintiff likewise, on 10 March, 1839, gave to the defendant his bond for the sum of $345.59, as the counter-security to the defendant, and also then executed a conveyance of two horses and his library, on condition that if the plaintiff "do pay a judgment of $300 now in Lincoln Superior Court in favor of J. P. Henderson against the same Edney, on which execution hath issued, and release said Motz from the liability of said judgment, which he may assume, the, etc.," which mortgage is exhibited with the answer, duly proved and registered in January, 1841. The answers further state that the plaintiff did not pay any part of that debt to Henderson, nor has he since paid any of it to the defendant, but the whole is justly due. The answers admit that the plaintiff was indebted to Jacob Ramsour in the sum of $345, or thereabouts, by note, and that the defendant also assumed to pay that debt for the plaintiff, and that the plaintiff in December, 1841, paid to the defendant the sum of $345 on that account, and that he gave no receipt therefor, but they state that the defendant immediately paid the money to Ramsour to the credit of that debt, and that after deducting the same, only about $40 remained due thereon, including interest afterwards calculated up to 10 December, 1842. And the answers further state that the debts to Ramsour and Henderson were not the same, but distinct and different debts; that they were both just debts, and that the defendant paid them both in the manner and at the different times before stated. The answers state that the defendant is unable to remember distinctly or to state positively the origin of the debt to Ramsour, as the transaction occurred so many years past, but that he believes the debt was first due to one Simpson on a note, which was assigned to Ramsour, and that he was certain that it was the debt of the plaintiff, and that he, the defendant, applied towards the payment of it, in December, 1841, the money then received for that purpose from the plaintiff, and that he afterwards paid the residue of the debt to Ramsour out of his own money. The answers further (239) state that when the plaintiff paid to the defendant that sum of $345, no allusion was made to the debt to Henderson, as that had been satisfied nearly two years before, and the defendant held the plaintiff's bond therefor, secured by the mortgage, but the money was paid to him specially to be applied to the note then held by Ramsour, to which it was applied as aforesaid.
In reference to the other bond for $426, the answers state it to have arisen as follows: That besides the transactions already related in the answers, the defendant paid for the plaintiff these several sums, viz.: to Slade, $242; to Quiggle, $183.26; to S. P. Simpson, about $200; and that he sold to the plaintiff the sulky and trunk at $128, and held his note to the defendant's father and testator for $168.17, making in all, with the balance of $40 due to Ramsour, the sum of $961.43 in which the plaintiff was indebted to the defendant, to the best of the defendant's recollection; that in December, 1842, the two parties agreed to settle their unadjusted matters, and that before entering upon the settlement they went together to Ramsour to ascertain the balance then due him, which the defendant was to pay, and found it to be about $40; and they then, when the matter was fresh in their memories and with the assistance of memoranda, which each party had kept and then had thought not subsequently preserved, entered upon and made a settlement, upon which, after deducting the sum of $150 for the price of a cow and calf then purchased by the defendant from the plaintiff, a balance was found due to the defendant of $426 upon those accounts, for which the plaintiff then executed his said bond with apparent willingness and without any condition or reservation in respect to a further settlement or other matter whatever. The answers admit that in that settlement was included the debt of $168.17 to John Motz, and state that the note was then given up to the plaintiff and is now in his possession, unless he (240) has destroyed it; but they further state positively that the settlement did not include the bond given 10 March, 1839, for $345.59, because the defendant had already that bond and a separate and special security in the mortgage of the horses and books, and also the pledge of the watch, which he would have been unwilling to give up; and the answers further state that so far from any dissatisfaction or doubt being felt or expressed by the plaintiff with respect to the sum in which he fell in debt, or any stipulation as to any future settlement, the plaintiff entirely acquiesced in the result and gave this bond for the balance, and at the same time placed in his hands, as collateral security, the notes of Welch and others, and took his receipt for them, which is appended to the bill, and that the plaintiff then perfectly understood and admitted that the same was due to the defendant, besides the other sum of $345.59 due on the previous bond; and that accordingly the defendant still retained the possession of the watch that had been pledged therefor, and also the library some time thereafter, and until the plaintiff removed to another county and solicited the use of the books as necessary in his profession. The answers further state that in fact more was due to the defendant than the balance struck of $426, as he verily believes, and that he has no doubt that he had forgotten at the settlement one or more of the several sums before mentioned, which he had paid for the plaintiff, and that they were omitted in the settlement; and he affirms positively that they were all in fact paid by him. In particular, the answers state that the debt to Mr. Quiggle was $183.26, and that it was not paid by the plaintiff, and was paid by the defendant under the following circumstances, namely: that some of the other creditors of the plaintiff threatened to levy on the effects of the plaintiff, including those mortgaged to the defendant, who had neglected for some time to have (241) the mortgage registered, and that, in order to prevent other creditors from getting a preference over him, the defendant ordered a constable to levy Quiggle's executions, and also one in favor of his mother, on the property; but that in fact no part of it was sold, and subsequently the defendant paid the whole debt to the constable, and took his receipt therefor on 4 September, 1841; and he believes the same was included in the settlement of 10 December, 1842, and also that the plaintiff obtained the judgments from the constable after they had been paid by the defendant.
The answers further admit that John Motz owed the plaintiff the sum of $75, but denies that the defendant agreed to give the plaintiff credit therefor in their accounts, or on the plaintiff's bond to John Motz for $168.17; and, on the contrary, they state that the plaintiff was also indebted to John Motz by open account to a larger amount in dealings subsequent to the execution of the bond, and that it was agreed by the plaintiff and the defendant that the $75 should be credited to the open account, and it was so credited.
The answers also admit that in 1839 the defendant was indebted to James M. Edney over $200, and that the plaintiff had the collection of it, and they state that in the autumn of 1839 the defendant, by the directions of the plaintiff, paid $100, part thereof, to Thomas M. Edney, and that the defendant hath no distinct recollection when or by whom the residue was paid; but that he feels confident that the whole was paid before 10 December, 1842, and if any part of it was advanced for him by the plaintiff, it was allowed to the plaintiff in the settlement of that day on which the bond for $426 was given.
The answers also admit that the watch was pledged to the defendant as a security for the debts existing at the time, but they do not state the time, and only say that the defendant gave the plaintiff a receipt for the watch at the value of $160, or more, expressing the time and the purpose for which he held it. The answers further state, in respect (238) to the notes deposited with the defendant for collection, (?) that the one given by Burgnar and other for $40 was claimed by W. J. Alexander as belonging to him, and that the defendant, believing it to belong to him, delivered it to him, and took his receipt for the same for the satisfaction of the plaintiff; that the note of M. Phifer for $160 was payable 22 June, 1844, and that when it fell due, Phifer had become insolvent and has so continued ever since, so that no part of the debt could be collected; that all the others were put into the hands of an attorney, the late Mr. Hoke, for collection, who was unable to collect anything on them before his death, which happened in 1844; and that they were then delivered to another attorney for the same purpose, who had also been unable to collect any part of them before the suit was brought; but that pending the suit his attorney had received the sum of $65 from William Welch, which is all he could get from him, for the reason that the plaintiff himself had received the residue of the debt; that the other debtors are and were insolvent when the defendant received the bonds, and that his attorneys have been unable to collect any part of those debts; and that the defendant has always been willing to return the bonds to the plaintiff, and also, upon satisfaction of the debts due him, to redeliver the watch and release the other property mortgaged.
Before considering the merits, and whether the answer meets the equity, the plaintiff's counsel took some preliminary objections to entertaining at all the motion to dissolve the injunction. It was insisted that the exceptions to the two first answers being undisposed of, stood in the way of that motion; and also that after the motion had been once refused, it could not be renewed. In England (239) the court never passes on exceptions in the first instance. (?) Hence a reference of an answer for impertinence, or of exceptions to its efficiency, is good cause against dissolving an injunction. Fisher v. Bayley, 12 Vis., 18; Goodinge v. Woodhams, 14 Vis., 534. Indeed, a motion to dissolve will not be heard until the answer has been filed a certain time, so as to afford an opportunity to the other side to consider it, and move a reference for impertinence, or except for insufficiency. Those rules of practice are convenient and proper there, as the court is always open, and can require the plaintiff to except in a reasonable time, and to speed the report so as not to delay the motion to dissolve unreasonably; and they greatly facilitate the business, as thereby the attention of the judge, on the motion to dissolve, is not required to anything but the merits. But rules of practice must vary according to the different conditions of courts and suitors, so as to promote substantial justice, as far as may be, in the actual state of things. The shortness of our terms, which are limited to one week, twice a year, puts it entirely out of our power to adopt the English course with any kind of regard to the justice due to the defendant in injunction causes. Therefore, although it does not allow to the plaintiff's counsel as much time as is desirable to prepare exceptions or argument, and also greatly increases the burden of the judge, the Court was obliged to say, in Smith v. Thomas, 22 N.C. 126, that exceptions did not answer the motion to dissolve, but that the defendant might bring on both to be argued together, and that the court would dissolve the injunction unless the exceptions proved to be well founded. Indeed, when one considers the matter, it is found that, even without the exceptions, the court would not dissolve the injunction, if there be such an insufficiency in the answers as is material to the equity on which the injunction was granted, and would form a just (240) ground of exception. So that, in truth, the rule in England is (?) designed chiefly to clear the case, on the motion to dissolve, of everything extraneous, that the counsel and the court may not be perplexed with any matter not directly relevant to that motion, on the merits purely. The Court would gladly adopt the same course here, if it might be done without the risk of great injury to defendants; and, no doubt, if there were reason to suppose that a defendant had kept back his answer purposely to conceal its contents and gain an advantage, the court would not act upon the motion immediately, but let it stand over and allow the other side time to examine the answer. In the case before us we think the court was entirely right in refusing to dissolve the injunction in October, 1847, because the motion was founded on the answer alone, without bringing on the exceptions to it. The court might properly have refused to hear the answer at all under those circumstances. If, indeed, the exceptions had been brought on with the motion, the court might possibly, and, we must presume probably, have refused the motion, because the court might have thought the exceptions well founded. But, as the case now stands, the Court here does not consider that point nor look into the exceptions, because there was no appeal upon that part of the case, and because, as we conceive, the exceptions have now had their desired effect in obtaining the answer of April, 1848, which must be deemed satisfactory to the plaintiff and sufficient, as no exception was taken to it. The Court, in the order of October, 1847, did not continue the injunction to the hearing, but merely refused then to dissolve it, at the same time allowing or requiring a further answer. Now, although it was right to refuse the dissolution of an insufficient answer, or even to hear the answer apart from the exceptions, yet there is no reason why the defendant may not be allowed to make or renew a motion, after he shall have, in submission to the exception or to the order of the court upon them, put in a further answer which meets (241) the bill and appears to be sufficient, inasmuch as the plaintiff (?) does not except to it. It would be exceedingly rigorous to visit the omission to put in a full answer at first, by precluding the party, after answering sufficiently, from moving to dissolve, for the effect would be, for perhaps a mere oversight, to continue the injunction to the hearing, though the whole equity of the bill was met by the answers, taken together. We are not aware that there has ever been any such practice, and think there ought not to be, and it is clear that nothing of the kind was intended in the order of October, 1847, but quite the contrary. The Court is therefore of opinion that the defendant's motion, after his further answer at April Term, 1848, was admissible, notwithstanding the exceptions to the previous answers and the refusal to dissolve the injunction upon those answers. In other words, we hold that when the defendant finally put in an answer which, with the others, amounted to a full answer, to which no exception could be taken, it was open to him to move thereon to dissolve the injunction, as he might have done at the first term, if he had then sufficiently answered. For the exceptions are answered, and virtually put out of the way, and the cause is to be considered on the equity to sustain the motion when made, as in other cases.
Upon the merits the answers completely meet the bill in every respect, but those of the note given up to Mr. Alexander and the sum of $65 collected from Welch pending this suit. The defendant admits, it is true, that the plaintiff paid him $345 on account of the debt to Ramsour, as mentioned in the bill; and he says he duly applied it to that debt. But he denies that either of his suits against the plaintiff concerns that debt except the small sum of about $40, included in the bond of December, 1842. He states positively that the plaintiff owed two debts of nearly the same amount — the one to Ramsour, and the other to Henderson — and that he, the defendant, was surety for both, and that although the plaintiff furnished the means of nearly paying the former, yet (242) that he did not pay anything to Henderson, but that the defendant paid the whole debt to him, and that it was for that debt, and not the one to Ramsour, that the plaintiff gave the defendant a bond for $345.59, 10 March, 1839, and the mortgage of the same date. As the two debts were so nearly of the same amount, possibly, after so long a time, one of the parties may be under some mistake on this point. The plaintiff treats the case as if there were but one debt, originally due to Henderson and transferred to Ramsour; while the answer is distinct and positive that they were different debts, and that the defendant paid both. That is sufficient upon the present motion, as the answer is taken as true. But it is, moreover, to be observed that the answer derives support on that point from the statement in the bill, that the defendant took up the plaintiff's note from Ramsour, while in the mortgage of the horses and library the plaintiff says that the debt to Henderson was then (10 March, 1839) in judgment, and execution out.
As to the other debts, the answers are equally explicit. The defendant says the plaintiff was mistaken in supposing that he was sued on his bond to John Motz, deceased, which he admits to have been included in the settlement of 10 December, 1842, on which the bond for $426 was executed. And as to this latter bond the answers deny explicitly and peremptorily every allegation in the bill calculated to weaken its obligation as a bond fairly obtained for a balance ascertained to be due on a full and final settlement; and certainly the circumstance that cotemporaneously the plaintiff placed in the defendant's hands bonds as a collateral security, and the terms in which he took the defendant's receipt therefor go far to give color and credit to those statements in the answer, independent of the fact that the sum due to the defendant was (243) even larger than amount of the bond, as he swears in each of his answers. For the defendant sets out the particulars, as he recollects them, showing a balance to him of upwards of $200, if, after crediting the plaintiff with the bond for $426, he be also credited with the defendant's debt to James M. Edney. In fine, upon the answers both the bonds to the defendant were justly due. The imputation of laches in regard to the bonds to be collected is also rebutted, not only by the statements that the defendant duly employed attorneys to attend to the business, but that in fact the debtors were insolvent, and that nothing could be got from them, except the sum of $65 from Welch, for which it is admitted the plaintiff is entitled to credit at the period of taking the judgments. The defendant is further accountable, at least for the present, for the bond for $40 and interest thereon from 10 December, 1842, which he surrendered to Mr. Alexander, as he did so without consulting the plaintiff, and he does not show that Mr. A.'s claim to it was well founded. As to the $65, the injunction ought to be perpetuated, and as to the $40 and interest, it should be continued, and at the hearing the defendant may establish, if he can, either that the bond belonged to Mr. Alexander or that the obligors in that also were insolvent. With these exceptions, we think the injunction should have been dissolved with costs, and to that effect a certificate must be sent to the court of equity. The plaintiff must pay the costs in this Court.
PER CURIAM. Ordered accordingly.
Cited: Capehart v. Mhoon, 45 N.C. 38; Pendleton v. Dalton, 64 N.C. 332; Halcombe v. Commissioners, 89 N.C. 349.
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