Duke v. Campbell

Annotate this Case

63 S.E.2d 555 (1951)

233 N.C. 262


No. 17.

Supreme Court of North Carolina.

February 28, 1951.

*556 Sharp & Sharp, by Norwood Robinson, Reidsville, for defendant-appellant.

Scurry & McMichael, Reidsville, for plaintiff-appellee.

WINBORNE, Justice.

The sole assignment of error presented for consideration on this appeal is based upon exception to the ruling of the court in sustaining the demurrer filed by plaintiff as shown in the record. This exception raises the question as to whether error in law appears upon the face of the record, Culbreth v. Britt Corp., 231 N.C. 76, 56 S.E.2d 15, and cases there cited. See also Gibson v. Central Mfrs. Mutual Ins. Co., 232 N.C. 712, 62 S.E.2d 320, and cases cited. And where error is manifest on the face of the record, it is the duty of the Court to correct it, and it may do so of its own motion, that is, ex mero motu. See *557 Gibson v. Central Mfrs. Mutual Ins. Co., supra.

In the case in hand it appears upon the face of the record that error is apparent in two aspects:

First: The demurrer fails to distinctly specify the grounds of objection to the answer of defendant, and may be disregarded. G.S. § 1-128; Love v. Chatham County Comm'rs, 64 N.C. 706; Heilig v. Foard, 64 N.C. 710; George v. High, 85 N.C. 99; Bank of Statesville v. Bogle, 85 N.C. 203; Goss v. Waller, 90 N.C. 149; Burbank v. Comm'rs of Beaufort County, 92 N.C. 257; Elam v. Barnes, 110 N.C. 73, 14 S.E. 621; Ball & Sheppard v. Paquin, 140 N.C. 83, 52 S.E. 410, 3 L.R.A.,N.S., 307; Seawell v. Chas. Cole & Co., 194 N.C. 546, 140 S.E. 85; Griffin v. Bank of Coleridge, 205 N.C. 253, 171 S.E. 71; Wilson v. Horton Motor Lines, 207 N.C. 263, 176 S.E. 750.

The statute G.S. § 1-128 declares that "The demurrer must distinctly specify the grounds of objection to the complaint, or it may be disregarded".

This statute as so worded is substantially the same as in the several codifications, C.C.P. Sec. 96, The Code Sec. 240, Rev. 475, and C.S. 512.

In the Love case, 1870, supra, the Court, in opinion by Pearson, C. J., speaking of the provisions of the statute as it then existed, C.C.P. Sec. 96, had this to say: "These are broad words and include demurrers for defects in substance as well as defects of form. So the demurrer in our case ought to have been disregarded, because it does not distinctly specify the ground of objection * * * The rule is positive. It applies to all demurrers, and cannot be modified by implication * *." To like effect are repeated decisions of this Court. (See cases cited above.)

Second: The demurrer is directed to a portion of one paragraph of the five set up in unity as a "further defense and answer" to the complaint of plaintiff. In such case the demurrer must be to the whole pleading. See G.S. § 1-128. Ransom v. McClees, 64 N.C. 17; Sumner v. Young, 65 N.C. 579; Speight v. Jenkins, 99 N.C. 143, 5 S.E. 385; Cowand v. Meyers, 99 N.C. 198, 6 S.E. 82; Conant v. Barnard, 103 N.C. 315, 9 S.E. 575; Moore v. Carolina Casualty Ins. Co., 231 N.C. 729, 58 S.E.2d 756.

In Sumner v. Young, supra, the Court said: "When there is but one cause of action, or but one defense, a demurrer must cover the whole ground, or else it will be a nullity." This declaration is approved and applied in the Moore case, supra.

In the present case while matters set up in the "further defense and answer" of defendant might have been the subject of separate alleged causes of action, they were not separated. Therefore, the "further defense and answer" must be treated as a unit, and demurrer directed to a part of it is a nullity. Sumner v. Young, supra.

While the parties, in their briefs filed in this Court debate the merits of the matters set out in Paragraph 1 of the "further defense and answer", decision here does not reach that phase of the matter.

For reasons stated, the judgment from which appeal is taken is


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