Dudley v. Dudley

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107 S.E.2d 918 (1959)

250 N.C. 95

Charlie DUDLEY, by his Next Friend, Calvin Dudley, v. Robert DUDLEY and his wife, Vera Mae Dudley.

No. 379.

Supreme Court of North Carolina.

April 8, 1959.

Clyde C. Randolph, Jr., Robert M. Bryant, Winston-Salem, for plaintiff, appellant.

J. F. Motsinger, Winston-Salem, for defendants, appellees.

HIGGINS, Justice.

G.S. ยง 1-131 provides: "Within thirty days after the return of the judgment upon the demurrer, if there is no appeal, or within thirty days after the receipt of the certificate from the Supreme Court, if there is an appeal, if the demurrer is sustained the plaintiff may move, upon three days' notice, for leave to amend the complaint. If this is not granted, judgment shall be entered dismissing the action." Burrell v. Dickson Transfer Co., 244 N.C. 662, 94 S.E.2d 829; Mills v. Richardson, 240 N.C. 187, 81 S.E.2d 409; Teague v. Siler City Oil Co., 232 N.C. 469, 61 S.E.2d 345, 346.

*919 The statute and the decisions authorized dismissal of the action if leave to amend is not obtained. Judge Gambill merely dismissed the amended complaint, thus leaving the cause upon the docket without a pleading. "An order sustaining the demurrer in effect merely strikes the complaint. The action remains on the docket sans a pleading and will be dismissed only in the event the plaintiff fails to amend or file a new complaint as he is by statute permitted to do." Teague v. Siler City Oil Co., supra.

Judge Gambill's order dismissing the amended complaint (filed without leave) did not dismiss the action but merely left it still pending without a pleading. The defendant has the right to move that the action be dismissed for failure to comply with the statutory requirement. The order dismissing the amended complaint is