Halifax County NcArchives Court.....W. E. Barnes, Adm'r, W. O. Dunn V. 1875
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Connie Ardrey n/a October 31, 2011, 4:19 pm

Source: N C Reports
Written: 1875

W. O. Dunn v. W. E. Barnes, Adm'r

After the decision of a Judge of the Superior Court overruling a demurrer as 
frivolous, the right to answer over is not a matter of course, but depends 
upon the sound discretion of the court. 

Any informality in the demand for judgment in a complaint is not ground for 
demurrer, and must be disregarded, when the sum demanded, and how it is due, 
sufficiently appear from the summons and complaint. 

In an action upon a bond "payable in gold or its equivalent in currency," the 
amount which the plaintiff is entitled to recover, must be measured by 
ascertaining its equivalent in currency. 

It is error, and contrary to the practice and decisions of our Courts to 
render judgment in the alternative.

An absolute judgment against an administrator ascertains the debt only, and 
has no effect in fixing the defendant with assets, or in disturbing the order 
of administration.

This was a Civil Action, for the recovery of money only, tried before Watts, 
J., at Sprint Term, 1875, Halifax Superior Court.

The plaintiff alleged that Margaret Dunn, the defendant's intestate, on the 
27th day of December, 1865, executed a promissory note, whereby she promised 
to pay, twelve months after date with interest from date, to L. L. Dunn and F. 
M. Parker, executors of B. W. Dunn, deceased, the sum of six hundred and 
seventy two dollars and seventy-five cents in gold, or its equivalent. That 
said Margaret died on or about the first day of January, 1873, and defendant 
was appointed her administrator on the first day of May, 1873. The said note 
has been rejected by him. On or about the fifteenth day of August, 1874, the 
note was transferred for value, to the plaintiff. No part of the note has been 
paid. That one dollar in gold was worth in United States currency on the 27th 
December, 1866, one dollar and forty cents.

The plaintiff prayed judgment against the defendant for the sum of (blank) 
dollars with interest thereon from the 27th day of December, 1866, until paid 
and the cost of the suit, &c.

The defendant demurred to the complaint and for ground of demurrer alleged:

1. That the prayer for judgment does not set out any amount claimed whatever, 
and demands judgment for nothing.

2. That it would seem from the complaint that the plaintiff desired to claim 
the value of gold at the time of making the note, and not the value at the 
time of payment which the defendant submits is wrong in law.

His Honor overruled the demurrer as frivolous. The counsel for the defendant 
stated that he had filed the demurrer in good faith and not merely for delay, 
and that he had a substantial defence. His Honor said that he could not tell 
what was in the mind of the counsel at the time the demurrer was filed, and he 
was bound by the face of the demurrer. Counsel then moved the Court for leave 
to answer the complaint. His Honor overruled the motion and gave judgment in 
favor of the plaintiff for $957.32, and interest on $672.75 from date in gold 
or its equivalent in Federal currency, to-wit: $1100.91. 

From this judgment the defendant appealed.

Walter Clark, for the appellant
Busbee & Busbee, contra

NC Supreme Court Justice Bynum, J. - The Court did not err in overruling the 
demurrer, and we concur also, that the demurrer was frivolous. Judgment 
corrected and affirmed. (see court case for judge's full findings)

Per Curiam
Judgment accordingly

Additional Comments:
In the NC Supreme Court June Term 1875

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