Vass v. . Brewer

Supreme Court of North Carolina March 15, 1898

Vass v. . Brewer, 29 S.E. 352 (N.C. 1898)

122 N.C. 226; 1898 N.C. LEXIS 231

Faikcloth

Opinion of the Court

*229 Faikcloth, C. J.

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. The Raleigh Paper Co., 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 so 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.

Reference

Full Case Name: W. W. VASS, Executor of W. W. Vass v. JOHN B. BREWER Et Al.
Status: Published
Syllabus: Action on Note — Endorser — Practice —• Frivolous Answer. 3. A frivolous answer is one that raises.no'issue or question of factor 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.