Silver Valley Mining Co. v. Baltimore Gold & Silver Mining & Smelting Co.

(after stating the case). The motion to dismiss the action, upon the ground that certain persons named had not been made parties to it, was properly disallowed. If the objection had been a valid one, taken properly, and in apt time, it came too late — just before entering upon the trial — to be insisted upon as of right. The statute (The Code, §§ 239, par. 4, 242, 243) provides, that the defendant may demur, when it appears, upon the face of the complaint, ■“that there is a defect of parties plaintiff or defendant,” and that “ when any of the matters enumerated as grounds of demurrer do not appear on the face of the complaint, the objection may be taken by answer,” and further, that if the objection shall not be so taken, “ the defendant shall be ■deemed to have waived the same, excepting only the objection to the jurisdiction of the Court, and the objection that the complaint does not state facts sufficient to constitute a cause of action.”

The objection was not taken by demurrer or answer, and so *463the defendants waived their right to take it at all. The Court might, for good cause shown, have allowed additional necessary parties to be made, and in some cases, it would, ex mero motu, require them to be made, but it seems that in this case it properly, as we shall see, did not deem them necessary. Lewis v. McNatt, 65 N. C., 63; Durham v. Bostick, 72 N. C., 353; Burns v. Ashworth, 1b., 496; Finley v. Hayes, 81 N. C., 368; Dunn v. Shermer, 93 N. C., 164.

The objection that the referee exceeded the scope of his authority, under the order of reference, is without force. If it be granted that he did, in some respects, (and we do not stop to see that this is so or not so), after he made his careful and elaborate report of the large volume of evidence taken before him, and his findings of fact and law, and the defendants had filed numerous exceptions to the same, it was expressly agreed h}7* the parties, “that this cause shall be tried before the Court, without a jury, upon the evidence taken and returned by Hon John C. King, Referee, upon the law and facts.” This was plainly a waiver of a trial by jury, as allowed by the statute (T)ie Code, § 415), and placed the whole case before the Court broadly upon its whole merits. Any inquiry as to the scope* of the order of reference could not therefore serve any useful purpose. It was the province of the Court to exclude from its consideration of the case, in any aspect of it, every thing immaterial and improper. and, in the absence of objection, it must be taken that it did so.

The assignment of error,-in that the Court failed to pass upon numerous exceptions to the admission of evidence objected to, and the refusal to admit other evidence offered by the defendants before the referee, cannot be sustained. • It. was agreed by the parties that the Court should try the case “upon the evidence taken and returned -by” the referee. There was no reservation in respect to it — the Court was to receive and consider it as it was “ taken and returned.” Be*464sides, sucli exceptions were not insisted upon on the trial, nor was the Court requested by the defendants to pass upon them. If they intended to insist upon them, they should have reserved the right in the stipulation to do so — at all events, in fairness they should have requested the Court to decide the questions raised by them. It seems to us clear that they intended to waive them, and it must be held that they did so. It would savor of triñing, to do otherwise.

It is further assigned as error, that the Court “ failed to render and file a statement of facts found, and his conclusions of law thereon, separately.” The statute (The Code, §417,) provides, that “ upon the trial of a question of fact by the Court, its decision shall be given in writing, and shall contain a statement of the facts found and the conclusions of law separately,” &c., so that it may be seen to what statement of facts, and how, the Court applied the law applicable arising upon them. The purpose is to have the facts of the case and the law, as applied, appear permanently, to the end that any proper motion or steps may be taken in the action to correct errors or irregularities, and likewise so that errors may be corrected here, in case the same shall be assigned and appeal tak.en to this Court. Clegg v. Soapstone Company, 66 N. C., 391; Foushee v. Pattershall, 67 N. C., 453; Straus v. Beardsley, 79 N. C., 59; Chastain v. Coward, 1b., 543.

The case settled on appeal states that the Court found the facts, and it appears that it did, and much in detail, from the evidence taken and returned by the referee, which, by agreement, as we have seen, was the evidence in the case. It is true the Court says that it found the facts as the referee found them, and adopted his findings as those of the Court. There is no reason why this might not be done. It was only important and necessary that the Court should find and state .the facts and its conclusions of law arising upon them, so that the whole might be distinctly seen. The material facts are found and stated — not very formally — and the conclu*465sions of law are stated with such distinctness as plainly to be seen. In addition to the general findings of fact, distinct issues of fact were drawn up, and the Court responded to them severally. These issues, and the responses to them, were not inconsistent with the facts as found and stated, but in harmony with them, and though somewhat irregular and unusual, we cannot see that any harm grew or could grow out of them, to the prejudice of the parties. They served, and it seems they were intended, to give the leading constituent facts greater point and distinctness. The defendant cannot be heard to complain that such issues were acted upon, because they consented to and proposed them. We are of opinion, therefore, that the findings .of. fact and the conclusions of law appear with sufficient distinctness to serve every just and useful purpose, and substantially as the statute requires in such cases.

It is unnecessary to consider the numerous exceptions to the order of the Court overruling the defendant’s exceptions to the report of the referee, because under and in pursuance of the stipulation waiving a trial by jury, the whole case, upon its merits, was before the Court, to he tried by it in all respects according to law. Accordingly it found the facts, and applied the law just.as if there had-been no reference and no report made by the referee. This appears from the record — the findings of the facts, the rulings, orders and final judgment of the Court, and, as well, the nature of the matter. No doubt the report facilitated the labors and action of the Court, hut it was not bound or governed, so far as appears, by anything contained in it as such report. It cannot be taken that the Court adopted the findings of facts by the referee without examination itself — it was its duty to scrutinize and consider the evidence, and to find the facts itself; and, the presumption is, it did so. That it found them to be just as the referee found them, is no valid objection; indeed, it goes, to show the more strongly that the findings were correct.

*466The defendant’s twenty-ninth exception, which applies to the third issue submitted to the Court, and its response to the same seem to us to be entirely groundless. The pleadings and the findings of fact suggest and give point to this third issue, and the issue itself, by its terms and purpose, plainly implies an inquiry as to positive-fraud. The “conspiracy,” referred to, is alleged, in the complaint, to be a combination to cheat and defraud the plaintiff, and the sale is alleged to have been a positively fraudulent transaction, and this is denied in the answer, thus raising the issue.

Moreover, the general findings of the facts sufficiently raised any questions as to constructive fraud, and if the issue had reference to that, then it was nugatory. Besides, there was evidence and facts found, from which the Court might find positive fraud. It is very certain that it did so in response to the issue.

Nor is the assignment of error, that the Court failed “to pass upon the questions of ratification and acquiescence in the sale of the stock to John M. Dennison,” well founded. The defendants did not tender any issue, or request the Court to make any special finding in that respect. They might have done so in apt time; as they did not, the omission was not error, of which he could complain after judgment. Kidder v. McIlhenny, 81 N. C., 132; Curtis v. Cash, 84 N. C., 42; Bryant v. Fisher, 85 N. C., 69; Simmons v. Mann, 92 N. C., 12; and cases there cited.

Besides, the defendant corporation had opportunity, and probably availed itself of it, to insist upon such alleged ratification and acquiescence, on the trial of the first issue submitted.

The learned counsel of the defendant, on the argument, laid much stress upon the suggested necessity of having .Dennison, Street, McElroy and Wilkins before the Court, .-as parties. They were not necessary parties — they were ¡simply officers and agents of the plaintiff and the Maryland *467corporation, and no relief is asked as to them. It appears that Wilkins was, at first, made a party, and answered, but afterwards, by consent, the action was abandoned as to him. These persons might have been examined, as witnesses for the plaintiff, or defendants; some, if not all of them, indeed, were examined for the defendants.

It was insisted, particularly, that the Maryland corporation was ,a necessary party, as it was alleged in the .complaint, and the whole pleadings and the evidence went to show, that the deed of trust in question was made to secure a large debt, therein specified, due from the plaintiff to it, and also that it fraudulently got the shares of the capital stock mentioned, sold the same, and realized therefor the sum of ninety thousand dollars, &c.' As to the deed of trust, the trustees therein, having the legal title to the land, are parties defendant, and make defence, and, in a measure and in an important sense, represent the cestui que trust. This corporation is a non-resident, and not within the jurisdiction of the Court. Besides, it appears that its stockholders have dissolved and abandoned it, as far as they could do so, without a formal surrender of its charter — that it has assigned all of its property, rights, credits and effects of every kind whatsoever, to the defendant corporation, and has, as far as it could, merged itself in the defendant corporation, which latter has assumed to represent it, and likewise all its liabilities. This fully appears from the deed of assignment, which the answer of the defendant corporation admits, and the answer so, in effect, declares. The defendants trustees admit the facts so to be, and they say in their answer, that they have recognized the rights of their co-defendant corporation, and have agreed with it, and intend, unless prevented, to execute the trust in its favor and for its benefit. Moreover, it appears that the stockholders of the defendant corporation are mainly, if not altogether, the stockholders of the Maryland corporation, and their stock in the latter *468corporation was transferred to and became the stock of the defendant corporation. All this, in effect, appears from the answers of the defendant, and from the findings of fact, so that, so far as the defendants is concerned in this action, the defendant corporation represents and must be treated as the Maryland corporation. It has all the latter’s property, has assumed all its liabilities, and has agreed and assumed to stand in its place and stead, and it must be treated as so doing, for the purpose of the action. All the parties thereto, necessary to a determination of the action, are before the Court.

The thirty-first exception, as to the time for which interest is allowed in the j udgment, must be sustained. The plaintiff recovers money realized for the stock sold by the Maryland corporation. When it received the money, does not appear, but it certainly, as appears, did not get or have it on the 10th of January, 1881, but after that time. It certainly had it before the time it executed the deed of assignment to the defendant corporation, which was the 31st day of September, 1883. The judgment must, therefore, be so amended as to allow interest on the principal sum of money from that date, and the whole judgment, so amended, affirmed. To that end, let this opinion be certified to the Superior Court.

Modified and affirmed.