Elam v. Barnes

• Decision Date: 23 February 1892
• Citation: 110 N.C. 73,14 S.E. 621
• Court: North Carolina Supreme Court
• Parties: Elam v. Barnes.

14 S.E. 621

110 N.C. 73)

Elam

v.Barnes.

Supreme Court of North Carolina.

Feb. 23, 1892.

Pleading — General Demurrer — Dismissal on Appeal—Pleading—Compromise.

1. Under Code, § 240, which provides that a general demurrer should not be considered, a demurrer was defective which stated that "the complaint did not state facts sufficient to constitute a cause of action, " but did not point out wherein it tailed to state a cause of action.

2. On appeal, the court will cf its own motion dismiss the case if the complaint fails to state a cause of action.

3. Plaintiff purchased tobacco of defendant, who refused to deliver the same, whereupon plaintiff commenced proceedings for its recovery. While the proceedings were pending, a settlement was had. Afterwards plaintiff sued for damage to the tobacco by reason of being handled during such proceedings. His complaint alleged that defendant offered, during the pendency of such proceedings, to settle the matter on a specified basis, "and that all matters in controversy between them should be thereby settled. " It further alleged that plaintiff accepted the offer, and that the terms thereof were fully complied with. Held, that it did not state a cause of action.

Appeal from superior court, Vance county; Spier Whitaker, Judge.

Action by George B. Elam against Calvin Barnes to recover damages occasioned by the wrongful withholding of plaintiff's tobacco. Judgment for defendant on demurrer. Plaintiff appeals. Action dismissed.

T. T. Hicks and A. J. Harris, for appellant.

Clark, J. The defendant, after answer filed, moved to dismiss the action on the ground that " the complaint did not state facts sufficient to constitute a cause of action." This is a demurrer which can be taken at any stage of the proceeding, and the objection may even be made for the first time in this court. None the less it is a demurrer, and should be disregarded, unless it specify the particulars wherein the complaint fails to state a cause of action. This is required by the Code, § 240, which expressly provides that a general demurrer should not be considered. Love v. Commissioners, 64 N. C. 706; George v. High, 85 N. C. 99; Bank v. Bogle, Id. 203; Jones v. Commissioners, Id. 278. The court below should have required the defendant to point out by his motion wherein the complaint failed to state a cause of action, and, if he failed to do so, should have disregarded it. Pearson, C. J., in Love v. Commissioners, 64 N. C. 706. It is true, notwithstanding such demurrer was erroneously allowed or disallowed below, it is still open to the defendant to renew it ore tenus here. Hunter v. Yarborough, 92 N. C. 68. If renewed here, and in the same defective form, this court will require the demurrer to comply with the statute, but in fact it was not renewed here. There is, strictly speaking, only before us for review the action of the court below in erroneously sustaining a general demurrer. It is true, the court here will look into the record, and...