Biddix v. KELLAR CONST. CORP.

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230 S.E.2d 796 (1977)

Boyd J. BIDDIX and Mary I. Biddix v. KELLAR CONSTRUCTION CORPORATION and Jerry Kellar.

No. 7627SC582.

Court of Appeals of North Carolina.

January 5, 1977.

*799 Basil L. Whitener and Anne M. Lamm, Gastonia, for plaintiffs-appellants.

Jeffrey M. Guller, Gastonia, for defendants-appellees.

BRITT, Judge.

To clarify the record as to what was submitted to Judge Kirby for determination, the parties have filed a stipulation in this court stating that the judgment appealed from "is based on the plea in bar raised by the third defense in defendants' answer". Thus, it is now clear that jury trial was not waived by plaintiffs and that Judge Kirby did not make a determination of the cause on the merits.

That being true, we must determine procedurally the effect of this "plea in bar" under the new Rules of Civil Procedure. G.S. 1A-1, Rule 7(c) provides that: "Demurrers, pleas, etc., abolished. Demurrers, pleas, and exceptions for insufficiency shall not be used." As stated in 2A Moore's Federal Practice § 7.06 (2d ed. 1975):

"Demurrers and common law pleas cannot be used to raise the legal insufficiency of a pleading. The method of attacking the sufficiency of a pleading or presenting other defenses or objections is prescribed in Rule 12, and discussed thereunder. . . . The defense or objection should be treated for what it would be worth if it had been accurately denominated as a motion for certain relief.. . ."

Under Rule 8, a release is an affirmative defense that must be set forth by a party wishing to rely on it. In their answer, defendants pled the release as a "plea in bar" to plaintiffs' action.

On its face, the judgment appealed from appears to be a judgment on the pleadings under G.S. 1A-1, Rule 12(c). However, that rule states that:

". . . If, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56. . .."

The "findings of fact" entered by Judge Kirby could not have been based solely on the pleadings since the "facts found" are not fully substantiated by the pleadings. For example, finding of fact number 6 is almost an exact quote from the individual defendant's affidavit. Since the trial judge considered matters outside the pleadings, his action must be treated as summary judgment pursuant to Rule 56.

It was improper for Judge Kirby to treat either motion as one for summary judgment because it is well established in North Carolina that no appeal lies from one superior court judge to another, and ordinarily one superior court judge may not modify, overrule, or change the judgment of another superior court judge made in the same action. 2 Strong, N.C. Index 2d, Courts § 9; Calloway v. Motor Co., 281 N.C. 496, 189 S.E.2d 484 (1972); State v. Neas, 278 N.C. 506, 180 S.E.2d 12 (1971). Judge Winner had previously denied both parties' motions for summary judgment. Therefore, Judge Kirby erred when he entered judgment for defendants based on the pleadings and affidavits introduced since this was a reversal of Judge Winner's previous denial of summary judgment. Furthermore, some of the "facts" found by Judge Kirby were controverted.

It appears that all parties would like to have a determination by this court as to whether the alleged release, as a matter of law, bars plaintiffs' action. Among the reasons why we do not attempt to reach this question is that plaintiffs' version of *800 the alleged release materially differs from defendants' version. The document that is made a part of defendants' answer states that it is made by "Jerry L. Kellar, doing business as Kellar Construction Company," and at no place mentions the corporate defendant. On the other hand, the document made a part of the affidavits of plaintiffs states that it was made by "Jerry L. Kellar, President of Kellar Construction Corp."; at no place is Jerry Kellar, individually, referred to. Thus, there could be a question of fact as to which of the defendants, if either, is entitled to any protection the release might afford.

For the reasons stated, the judgment appealed from is reversed and this cause is remanded for further proceedings.

Reversed and remanded.

VAUGHN and MARTIN, JJ., concur.