Ellis v. Perley

• Decision Date: 25 February 1931
• Docket Number: No. 593.,593.
• Citation: 157 S.E. 29
• Court: North Carolina Supreme Court
• Parties: ELLIS. v. PERLEY et al.

157 S.E. 29

(200 N.C. 403)

ELLIS.

v.PERLEY et al.

No. 593.

Supreme Court of North Carolina.

Feb. 25, 1931.

STACY, C. J., dissenting.

Appeal from Superior Court, Buncombe County; Oglesby, Judge.

Action by H. H. Ellis against Fred A. Perley, J. D. Eckles, and others. From a judgment overruling a demurrer of the last-named defendant, such defendant appeals.

Affirmed.

This is a civil action brought in the general county court of Buncombe county, N. C, by plaintiff, against defendants, to recover $8,-444.62, and interest, due on certain promissory notes with sundry credits thereon.

The demurrer of J. D. Eckles in the general county court of Buncombe county, N. C, is as follows: "Now comes the defendant, J. D. Eckles, and demurs to the complaint of the plaintiff herein and assigns as grounds for such his demurrer that this court has no jurisdiction of the subject of this action, for that the public statutes in virtue of which this Court is attempting to exercise jurisdiction of this action violate the constitution of North Carolina, and are, therefore, void."

The judge of the general county court of Buncombe county, N. C, overruled the demurrer. Defendant J. D. Eckles appealed to the superior court, and the judgment of the general county court of Buncombe county, N. C., was affirmed, and defendant J. D. Eckles appealed to the Supreme Court.

Carter & Carter, of Asheville, for appellant.

George W. Craig, J. W. Pless, and George H. Ward, all of Asheville, for appellee.

J. G. Merrimon and Joseph W. Little, both of Asheville, for Buncombe County Bar Association, amicus curiæ.

CLARKSON, J.

We think the court below was correct in overruling the demurrer. In Ideal Brick Co. v. Gentry, 191 N. C. at page 642, 132 S. E. S00, 804, speaking to the subject: "A demurrer can be sustained, and it is only appropriate, when the defect or objection appears on the face of the pleading, as it is not the province of a demurrer to state objections not apparent on the face of the pleading to which it is directed. A 'speaking demurrer, ' as styled by the books, is one which invokes the aid of a fact, not appearing on the face of the complaint, in order to sustain itself, and is condemned, both by the common law and the Code system of pleading. Besseliew v. Brown, 177 N. C. 65, 97 S. E. 743, 2 A. L. R. 862; Von Glahn v. De Rossett, 76 N. C. 292." Justice v. Sherard, 197 N. C. 237, 148 S. E. 241; Buchanan v. Feldspar Milling Co., 200 N. C. at page 53, 156 S. E. 140.

It is also said that "a demurrer goes to the heart of a pleading and challenges the right of the pleader to maintain his position in any view of the matter, admitting, for the purpose, the truth of the allegations of fact contained therein." Meyer v. Fenner, 196 N. C. at page 477, 146 S. E. 82; Winston-Salem v. Ashby, 194 N. C. at page 390, 139 S. E. 764; Efird v. Winston-Salem, 199 N. C. at page 35, 153 S. E. 632.

In Enloe v. Ragle, 195 N. C. at page 38, 141 S. E. 477, speaking to the subject: "A general demurrer will not be allowed. A demurrer must distinctly specify the grounds of objection or it may be disregarded. It may be taken to the whole complaint or to any of the alleged causes of actiou stated therein. C. S. § 512. A demurrer to the jurisdiction, or that the complaint does not state facts sufficient to constitute a cause of action will be treated as a motion to dismiss, and can...