Buchanan v. Smawley

Annotate this Case

99 S.E.2d 787 (1957)

246 N.C. 592


No. 29.

Supreme Court of North Carolina.

September 18, 1957.

*789 Hamrick & Hamrick, Rutherfordton, for plaintiff appellant.

Stover P. Dunagan, Hamrick & Jones, Rutherfordton, for defendant appellee.

*790 WINBORNE, Chief Justice.

This appeal challenges, and properly so, the judgment sustaining the demurrer from which appeal is taken.

The applicable statute, G.S. § 1-127, provides in sub-section 3 thereof that defendant may demur to the complaint when it appears upon the face of it that "there is another action pending between the same parties for the same cause." And applying this statute it is uniformly held by this Court that if the fact of the pendency of such prior action appears on the face of the complaint, it is ground upon which defendant may demur to the complaint. But if the fact does not so appear, objection may be raised by answer, G.S. § 1-133, and treated as a plea in abatement. See Moore v. Moore, 224 N.C. 552, 31 S.E.2d 690, and cases cited. Also Boney v. Parker, 227 N.C. 350, 42 S.E.2d 222; Dwiggins v. Parkway Bus Co., 230 N.C. 234, 52 S.E.2d 892; Reece v. Reece, 231 N.C. 321, 56 S.E.2d 641; Allen v. McDowell, 236 N.C. 373, 72 S.E.2d 746; McDowell v. Blythe Bros. Co., 236 N.C. 396, 72 S.E.2d 860.

Indeed, a speaking demurrer is not permitted. Reece v. Reece, supra.

In the light of the statute and these decisions applied to the allegations of the complaint here challenged it is seen that the prior action referred to is not between the same parties. Hence the pendency of it is not ground for demurrer.

And the applicable statute G.S. § 1-127 also provides, in sub-section 6 thereof, that defendant may demur to the complaint when it does not state facts sufficient to constitute a cause of action.

In this connection "The office of a demurrer is to test the sufficiency of a pleading, admitting, for the purpose, the truth of the allegations of [the] fact contained therein, and ordinarily relevant inferences of fact, necessarily deducible therefrom, are also admitted * * *," Stacy, C. J., in Ballinger v. Thomas, 195 N.C. 517, 142 S.E. 761, 763. See also Andrews v. National Oil Co., 204 N.C. 268, 168 S.E. 228; Toler v. French, 213 N.C. 360, 196 S.E. 312; Leary v. Virginia-Carolina Joint Stock Land Bank, 215 N.C. 501, 2 S.E.2d 570, and numerous other decisions to same effect.

In the light of this principle it is the established rule that where a general demurrer is filed to a complaint as a whole, if any portion of the pleadings is good and states a cause of action, the demurrer should be overruled. A complaint must be fatally defective before it will be rejected as insufficient. See Meyer v. Fenner & Beane, 196 N.C. 476, 146 S.E. 82; Griffin v. Baker, 192 N.C. 297, 134 S.E. 651; Blackmore v. Winders, 144 N.C. 212, 56 S.E. 874.

Applying these principles to the facts alleged in the complaint, admitted for the purpose, to be true, it may not be held that the allegations are so fatally defective.

Hence the demurrer must be overruled, and "the cause remanded for further proceedings * * * as to right and justice appertain and as the law provides." State v. Rhodes, 208 N.C. 241, 180 S.E. 84, 85.

For reason set forth, the judgment from which appeal is taken is