Opinion
(September Term, 1897.)
Action for Damages for Breach of Contract — Injuries to Real Estate — Venue — Pleading — Practice — Numbering Exceptions on Record — Marginal References to Exceptions.
1. Exceptions taken on trial should not be numbered (Rule 27) and noted on the margin of the record (Rule 21), but such numbering and marginal references should be printed, as they are necessarily a part of the case on appeal.
2. An error as to the venue is not now, as formerly, a defect affecting jurisdiction, but only ground for a motion to remove, which is waived unless the motion is made "in writing" and "before the time of answering expires."
3. The fact that a complaint for injuries to real estate fails to expressly allege in what county the land lies is immaterial where the complaint sets up as a cause of action a breach of an agreement contained in a former judgment between the same parties which is appropriately referred to in the complaint and set out in the answer and which shows the proper county.
ACTION tried before Coble, J., and a jury, at Spring Term, 1897, of BLADEN, to recover damages from the defendant resulting to plaintiff's land from the defendant's failure to comply with a consent judgment rendered in an action between the same parties at Fall Term, 1889, of BLADEN, for injuries to the real estate of plaintiffs.
C. C. Lyon for plaintiffs.
MacRay Day and J. D. Shaw for defendants.
The judgment referred to was as follows:
"This cause coming on to be heard, by consent and agreement (507) of parties, it is agreed: That the defendant shall pay to the plaintiff's attorney, C. C. Lyon, $100, and shall pay the costs of this action, to be taxed by the clerk; and shall widen or deepen the ditch on the north side of the track of the defendant from Tom Daniel Ridge to Corcan Branch, or near Wayman Creek, and shall do this ditching within a reasonable time — say, six months. And the plaintiffs agree to accept the same in full payment, satisfaction and compromise of all damages they have sustained by reason of the construction of ditches and water drains, and all damages by reason of changing and diverting any water from its natural course, and all damages by reason of overflowing plaintiffs' land named in complaint with water, and all damages resulting from placing an embankment on defendant's track across branch running through plaintiffs' land, and of all damages to plaintiffs' land by overflow of water from all sources.
"In accordance with the above agreement, and by consent of parties, it is adjudged: That the plaintiffs recover of the defendant the sum of $100, the same to be paid to C. C. Lyon, attorney of plaintiffs, and the costs of this action, to be taxed by the clerk."
The defendant answered alleging that they had complied with the judgment, which was set out in full in the answer. At the close of the testimony the defendant moved (not in writing) to remove the cause from Bladen County to Columbus County for trial for the reason that no part of the land injured, as shown by the testimony, lay in Bladen County, but in Columbus County. The motion was overruled. There was a verdict for the plaintiffs for $800, and from the judgment thereon the defendant appealed.
Though there is a large number of exceptions, they are not numbered as required by Rule 27 and noted on the margin of the record as required by Rule 21. Being necessarily a part of the "case on appeal." the numbering of the exceptions and marginal references thereto should be printed. It is a great convenience on the argument to have this, especially when, as in this case, the exceptions are numerous. The attention of appellants is called to what was said on this subject in Alexander v. Alexander, 120 N.C. 472 (on page 474), and to the penalty prescribed by Rule 20 for failure to comply with the rule.
Without adverting to the fact that this is an action for damages resulting from breach of a contract (set out as the basis of a former judgment) to do certain ditching on the defendant's own land, and not directly for a tort for "injuries to real estate," the motion for a change of venue was properly refused. If it be conceded that it was an action for "injuries to realty," the Code, sec. 190 (1), an error as to the venue is not as formerly a defect affecting the jurisdiction, but only ground for a motion to remove, which was waived, since the motion was neither "made in writing" nor "before the time of answering expired." Code, sec. 195; McMinn v. Hamilton, 77 N.C. 300; Lafoon v. Shearin, 91 N.C. 370 (which was an action of ejectment); Morgan v. Bank, 93 N.C. 352; County Board v. State Board, 106 N.C. 81; Baruch v. Long, 117 N.C. 509.
There is no force in defendant's suggestion that the complaint does not disclose in what county the land lies, for it alleges as the cause of action the breach of the agreement embraced in the judgment, referring to the judgment appropriately, so that the defendant, by examining the pleadings in such former action, would have had notice of the locus, and, indeed, in its answer the defendant sets out the judgment and contract in full and avers it has fully complied therewith and has done the ditching therein required. Besides, if there had been any doubts as to the locality, the defendant could have asked for a bill (509) of particulars before answering (Code, sec. 259; Bryan v. Spivey, 106 N.C. 95) or that the pleadings be made more specific. Code, sec. 261; Fulps v. Mock, 108 N.C. 601.
There are many other exceptions, but they are without merit and need not be discussed. Though not abandoned, with propriety they were neither insisted upon nor argued in this Court.
No error.
Cited: Lucas v. R. R., 122 N.C. 938; Baker v. Hobgood, 126 N.C. 152; Brinkley v. Smith, 130 N.C. 226; Sigman v. R. R., 135 N.C. 182.