Powell v. Powell

156 S.E.2d 691 (1967)

271 N.C. 420

Alice Van Deusen POWELL v. Dr. William F. POWELL.

No. 115.

Supreme Court of North Carolina.

September 20, 1967.

*692 Williams, Williams & Morris by William C. Morris, Jr., and James F. Blue, III, Asheville, for defendant appellant.

Loftin & Loftin, Asheville, for plaintiff appellee.

PER CURIAM.

A judgment on the pleadings is proper only when the pleadings fail to present any issue of fact for the determination of a jury. City of Reidsville v. Burton, 269 N.C. 206, 152 S.E.2d 147, and cases cited. In Erickson v. Starling, 235 N.C. 643, 71 S.E.2d 384, the Court said: "When a party moves for judgment on the pleadings, he admits these two things for the purpose of his motion, namely: (1) The truth of all well-pleaded facts in the pleading of his adversary, together with all fair inferences to be drawn from such facts; and (2) the untruth of his own allegations in so far as they *693 are controverted by the pleading of his adversary."

In Edwards v. Edwards, 261 N.C. 445, 135 S.E.2d 18, the Court said: "G.S. 1-151 requires that the allegations of a pleading shall be liberally construed for the purpose of determining their effect and with a view to substantial justice between the parties. A motion for judgment on the pleadings `is not favored by the courts; pleadings alleged to state no cause of action or defense will be liberally construed in favor of the pleader.' 51 Am.Jur., Pleadings, sec. 336."

The separation and property settlement agreement is not attached to the complaint, nor made a part thereof, and the allegation in the complaint as to its contents are meager and not definite as to the length of time the monthly payments to plaintiff should continue. The answer and the amended answer admit that plaintiff and defendant signed the purported separation agreement on 1 September 1960, but the amended answer denies that defendant promised to pay to plaintiff for her separate support and maintenance monthly periodic payments payable on or before the 10th day of each month commencing with the month of September, 1960. The amended answer further denies that defendant has defaulted in any monthly payments, and specifically denies that he is indebted to plaintiff in the sum of $7500 because of any default in monthly payments under the property settlement agreement. On these material questions the amended answer raises issues of fact, and this is true even if the allegations of alleged coercion, threats and intimidations on the part of the plaintiff, contained in defendant's further answer and defense, are conclusions of law and raise no issue of fact as contended by plaintiff, which question is not necessary for us to decide on this appeal. Such being the case, the judgment on the pleadings was improvidently entered, and is

Reversed.