Dillingham v. Kligerman

Annotate this Case

69 S.E.2d 500 (1952)

235 N.C. 298


No. 95.

Supreme Court of North Carolina.

March 19, 1952.

*501 Scott Dillingham, Asheville, plaintiff, appellant, in pro. per.

Shuford, Hodges & Robinson, Asheville, for defendants Oscar Pitts and Elon Smawley, appellees.

Narvel J. Crawford, Asheville, for other defendants, appellees.

JOHNSON, Justice.

There is no allegation in the complaint that any one of the defendants whose demurrers were sustained has or claims any interest in the lands referred to in the complaint, nor that any one of these defendants is in anywise obligated to the plaintiff. It nowhere appears on the face of the complaint that the plaintiff is entitled to relief of any sort against any of these defendants. Besides, it appears upon the face of the record that there was no acknowledgment or proof of the execution of the contract by Mrs. Minnie Levy (now Mrs. Minnie Levy Kligerman), the *502 seller who allegedly contracted to convey the disputed lands to the plaintiff. Therefore, the court properly sustained the demurrers filed by the appellees. As to them, the complaint was wholly insufficient to allege a cause of action. The statute, G.S. ยง 1-151, which requires liberal construction in favor of the pleader, neither requires nor permits the court to construe into a pleading that which it does not contain. Jones v. Jones Lewis Furniture Co., 222 N. C. 439, 23 S.E.2d 309; Citizens Bank of Marshall v. Gahagan, 210 N.C. 464, 187 S.E. 580.

The question whether on demurrer sustained the action was dismissed prematurely is not presented for decision. This question, if raised by the exception to the judgment, not being discussed in appellant's brief nor supported by authority, will be treated as abandoned. Rule 28, Rules of Practice in the Supreme Court, 221 N.C. 562 et seq. See also Gray v. Cartwright, 174 N.C. 49, at page 52, 93 S.E. 432; State v. Howley, 220 N.C. 113, 16 S.E.2d 705; Maynard v. Holder, 219 N. C. 470, 14 S.E.2d 415.