Bank of Wadesboro v. Caudle

79 S.E.2d 723 (1954)

239 N.C. 270

BANK OF WADESBORO v. CAUDLE.

No. 596.

Supreme Court of North Carolina.

January 15, 1954.

*725 Taylor, Kitchin & Taylor, Wadesboro, for plaintiff appellee.

Fred J. Coxe, Wadesboro, for defendant appellant.

BARNHILL, Justice.

Counsel for appellant in his brief makes reference to "the confused and muddled mess into which this case has developed." We studiously refrain from commenting upon his observation. Nonetheless, we have experienced great difficulty in ferreting out the chronological order of the various motions and orders which have been made and entered in the case as it wended its leisurely way through the court. Even now, we are not quite certain they are stated in exact and proper order. However, the essential facts, once ascertained, lead to a single and simple conclusion. Defendant's motion to dismiss as in case of nonsuit should have been allowed.

A. L. Caudle, having supposedly acquired the tax sales certificates which are the subject matter of this action, had himself made substitute plaintiff. Thereafter, he filed no complaint or amendment to the original complaint alleging facts which would entitle him to the relief originally sought by Anson County. Nor has the present plaintiff filed any such pleading. Thus we have a complaint alleging a cause of action in favor of Anson County and a verdict and judgment in favor of plaintiff.

Proof without allegation is as unavailing as allegation without proof. Ingold v. Phoenix Assurance Co., 230 N.C. 142, 52 S.E.2d 366, 8 A.L.R.2d 1439; Whichard v. Lipe, 221 N.C. 53, 19 S.E.2d 14, 139 A.L.R. 1147. Both are required, Maddox v. Brown, 232 N.C. 542, 61 S.E.2d 613, and each must substantially correspond with the other. Wilkins v. Commercial Finance Co., 237 N.C. 396, 75 S.E.2d 118, 122. The absence of either constitutes *726 a fatal variance which requires a dismissal of the action.

"`A party cannot set up one cause of action or defense and succeed on proof of another and different cause of action not pleaded, and, unless cured by amendment, a material variance between the pleadings and the proof is fatal to a claim or defense.'" Ervin, J., in Wilkins v. Commercial Finance Co., supra.

It is quite true that certain of the motions made and orders entered in the cause contain the statement that A. L. Caudle had purchased the tax sales certificates which are the subject matter of this action and had, by reason thereof, succeeded to the rights of the original plaintiff. But this will not suffice. Causes are tried on the pleadings filed therein, and only the issues raised thereby may properly be submitted to the jury.

We may note that only one case is pending. When A. L. Caudle was made party plaintiff he had a summons and a copy of the original complaint served on defendants. However, the circumstances disclosed by the record clearly show that plaintiff adopted this somewhat unorthodox method of giving defendants notice that he had been made plaintiff. Furthermore, it has been treated by the parties as one cause. All motions and orders have been made in the original cause.

It is not appropriate for us to discuss at this time what right, if any, plaintiff has to apply for leave to file a complaint or what effect, if any, filing of such pleading at this late date would have on the applicability of the statute of limitations pleaded by defendant. Those questions must be reserved for decision, in the first instance, by the court below. Woodard v. Clark, 234 N.C. 215, 66 S.E.2d 888.

The defendant's motion for judgment as of nonsuit should have been allowed. For that reason the judgment entered is

Reversed.