Womble v. . Fraps
Supreme Court of North Carolina
Civil ActioN tried at Spring Term, 1877, of Wake Superior Court, before Buxton, J. The plaintiff as administrator (with the will annexed) of Henry Hesselbach, alleged, that oil the 2d day of June, 1873. the defendant and one Phil. Thiem executed a joiut note to Hesselbach for $800, and that no part thereof had beeu paid except the interest up to the 1st day of March, 1875, and demanded judgment for the amount due thereon.
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Civil ActioN tried at Spring Term, 1877, of Wake Superior Court, before Buxton, J. The plaintiff as administrator (with the will annexed) of Henry Hesselbach, alleged, that oil the 2d day of June, 1873. the defendant and one Phil. Thiem executed a joiut note to Hesselbach for $800, and that no part thereof had beeu paid except the interest up to the 1st day of March, 1875, and demanded judgment for the amount due thereon. The defendant admitted the execution of the note on his part as surety to Thiem, but has received no benefit therefrom. He further alleged that Thiem tiled his petition in…
1Opinion of the Court
ByNüm, J.
When the answer is put in in good faith, and •is not clear]}1- impertinent, the defendant is entitled to have the facts alleged in it either admitted by a demurrer or passed on by a jury. The courts do not encourage the practice of moving for judgment upon the answer as being frivolous. Erwin v. Lowery, 64 N. C., 321; Swepson v. Harvey, 66 N. C. 436.
The defendant here is placed at a disadvantage. He is a surety only, the principal being a bankrupt and .the obligee being dead. He cannot therefore speak with precision or certainty in his defence. But he is entitled to all the defences…
2Cases cited2 opinions
- Erwin v. . LowerySupreme Court of North Carolina · 1870
- George W. Swepson v. . John C. HarveySupreme Court of North Carolina · 1872
3Cited by5 opinions
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- Hull, Lanier & Co. v. CarterSupreme Court of North Carolina · 1880
- W. D. Smith & Co. v. PipkinSupreme Court of North Carolina · 1878
- Campbell v. . PattonSupreme Court of North Carolina · 1893
- Bank v. . WilsonSupreme Court of North Carolina · 1828