Calaway v. Harris

*119 Stacy, C. J.

The question for decision is the correctness of rulings on exceptions to the referee’s report.

The trial court’s second conclusion, above set out, would seem to be an inadvertence which was perhaps occasioned by a misapprehension of the record. No doubt the respondents omitted to point out that their first amended answer, which was verified, alleged ownership and possession of Tract No. 2 (as well as Tract No. 1) ; that the second unverified amended answer simply amplified this allegation by stating how title was acquired, to wit, by adverse possession; that the respondents were allowed, by order of court, to file this second amended answer, which was before the court, unverified, at the time of the order; that the petitioners waived the verification by filing reply and allowing the matter to go to two hearings before the referee, McMillan v. Baker, 92 N. C., 111 , and that only after an adverse referee’s report did they interpose any objection. In fact, it docs not appear that a motion was made at any time to strike this unverified pleading from the record, although the respondents in the end asked to be allowed to verify it, which was denied.

True it is, the statute provides that when one pleading in a court of record is verified, every subsequent pleading in the same proceeding, except a demurrer, “must be verified also.” G. S., 1-144. The requirement is one which may be waived, however, except in those cases where the form and substance of the verification is made an essential part of the pleading; as in an action for divorce in which a special form of affidavit is required, G. S., 50-8;

Silver v. Silver, 220 N. C., 191 , 16 S. E. (2d), 834 ;

Martin v. Martin, 130 N. C., 27 , 40 S. E., 822 ; in a proceeding to restore a lost record, G. S., 98-14;

Cowles v. Hardin, 79 N. C., 577 , and in an action against a county or municipal corporation, G. S., 153-64. McIntosh on Procedure, 369.

Statutory provisions enacted for the benefit of a party litigant, as distinguished from those for the protection of the public, may be waived, expressly or by implication.

Battle v. Mercer, 187 N. C., 437 , 122 S. E., 4 ;

Holloman v. Holloman, 127 N. C., 15 , 37 S. E., 68 . For instance, it is provided by G. S., 1-111, that in actions for the recovery of the possession of real property, the defendant, before he is permitted to plead, “must execute and file” a defense bond, or in lieu thereof certificate and affidavit as provided by G. S., 1-112. While this requirement is in practically the same language as that respecting the verification of subsequent pleadings where one is verified, it is subject to be waived, unless seasonably insisted upon by the plaintiff.

Timber Co. v. Butler, 134 N. C., 50 , 45 S. E., 956 .

Where rulings are made under a misapprehension of the law or the facts, the practice is to vacate such rulings and remand the cause for *120 further proceedings as to justice appertains and the rights of the parties may require.

McGill v. Lumberton, 215 N. C., 752 , 3 S. E. (2d), 324 .

Error and remanded.