Dale v. Lattimore
Decision Date | 15 September 1971 |
Docket Number | No. 7110SC19,7110SC19 |
Citation | 12 N.C.App. 348,183 S.E.2d 417 |
Court | North Carolina Court of Appeals |
Parties | Fred DALE v. George F. LATTIMORE, Jr. |
Ellis Nassif, Raleigh, for plaintiff appellee.
Carl E. Gaddy, Jr., Raleigh, for defendant appellant.
Defendant first contends that the complaint fails to state a cause of action and moves this Court Ore tenus that the cause be dismissed. It appears from the record that the complaint was filed 12 March 1969, and that a demurrer was filed 30 April 1969. Order was entered overruling the demurrer on 10 July 1969. The record does not reveal an objection and exception to the entry of that order, nor does the record reveal that a motion to dismiss under Rule 12(b)(6) ( ) was made by defendant at trial.
We have before us, then, the question of whether a motion to dismiss an action for failure of the complaint to state a claim upon which relief can be granted can be interposed on appeal.
It is true that under the former procedure, defendant, by answering the complaint, did not waive the right to demur for failure of the complaint to state a cause of action, or for its statement of a defective cause of action. Demurrer Ore tenus on this ground could be interposed at any time before final judgment, even in the Supreme Court on appeal. Under the former procedure, the appellate court could take cognizance of the complaint's deficiency Ex mero motu. 6 Strong, N.C. Index 2d, Pleadings, § 26.
G.S. § 1A--1, Rule 7(c) abolished demurrers, and with them the concept of 'a defective statement of a good cause of action.' G.S. § 1A--1, Rule 12(b)(6) permits a motion to dismiss upon the ground that the complaint states a defective claim or cause of action but not upon the ground that the complaint contains a defective statement of a good cause of action, relief for that defect being available under other sections of Rule 12. Sutton v. Duke, 277 N.C. 94, 176 S.E.2d 161 (1970).
G.S. § 1A--1, Rule 12(b), provides that certain defenses may, at the option of the pleader, be made by motion. Among the seven listed is: '(6) Failure to state a claim upon which relief can be granted.' The rule further provides:
The pertinent provision of section (g) is that if a party does make a motion under this rule but fails to include a defense or objection available to him and permitted to be raised by motion by this rule, he cannot thereafter make a motion based on the defense or objection omitted, 'except a motion as provided in section (h)(2) hereof on any of the grounds there stated.'
Section (h)(2) provides: 'A defense of failure to state a claim upon which relief can be granted, a defense of failure to join a necessary party, and an objection of failure to state a legal defense to a claim may be made in any pleading permitted or ordered under Rule 7(a), or by motion for judgment on the pleadings, or at the trial on the merits.'
Unquestionably, a motion to dismiss for failure to state a claim upon which relief may be granted, under Rule 12(b)(6), can be made as late as trial upon the merits. However, we are of the opinion that, as a general rule, the motion comes too late on appeal. The verbiage of G.S. § 1A--1, Rule 12(h) and Rule 12(h) of the Federal Rules is identical except the Federal Rule refers to 'a party indispensible under Rule 19' and G.S. § 1A--1, Rule 12(h) refers to 'a necessary party'. The Rules of Civil Procedure in the federal courts are substantially identical, and the application thereof over the years by the federal courts may often serve as a guide in our interpretations. In Black, Sivalls & Bryson v. Shondell, 174 F.2d 587 (8th Cir. 1949), the action was brought in a Missouri state court but removed to federal district court because the requisite amount was involved, and there was diversity of citizenship. Plaintiffs sued for damages for breach of express and implied warranty in the sale of five oil storage tanks manufactured by defendant and sold to plaintiffs. The jury returned a verdict for plaintiffs and defendant appealed. Defendant had not moved for dismissal for failure of the complaint to state a claim upon which relief could be granted nor had it moved for directed verdict at the close of the evidence. After the verdict was returned and judgment entered, it moved for judgment notwithstanding the verdict or in the alternative for a new trial. On appeal one of defendant's contentions was that the complaint did not state a claim upon which relief could be granted. As to that, the Court said:
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