Erickson v. Starling

• Decision Date: 11 June 1952
• Docket Number: No. 453,453
• Citation: 71 S.E.2d 384,235 N.C. 643
• Court: North Carolina Supreme Court
• Parties: ERICKSON et al. v. STARLING et al.

Page 384

71 S.E.2d 384

235 N.C. 643

ERICKSON et al. v. STARLING et al.

No. 453

Supreme Court of North Carolina.

June 11, 1952

Lassiter, Leager & Walker, Raleigh, for the plaintiffs, appellants.

Smith, Leach & Anderson and Douglass & McMillan, Raleigh, for the defendants, H. C. Starling, Earle Jones, and Ruth I. Page, individually and as trustees, and Ruth I. Page, executrix of the estate of B. F. Page, appellees.

Brassfield & Maupin, Raleigh, for the defendants, W. H. King Drug Co., Peabody Drug Company, Mrs. H. E. Craven, Fred T. Craven, William M. Craven, Henry E. Craven, Jr., Mrs. J. D. Kase, and J. Ben Coppedge, appellees.

Ehringhaus & Ehringhaus, Raleigh, for the defendant, Carolina Surgical Supply Co., appellee.

ERVIN, Justice.

Courts are created to try causes. A trial is the examination before a competent tribunal, according to the law of the land, of the issues between the parties in a cause, whether they be issues of law or of fact, for the purpose of determining such issues. G.S. § 1-170; Cooney v. Cooney, 25 Cal.2d 202, 153 P.2d 334; Finn v. Spagnoli, 67 Cal. 330, 7 P. 746; Tregambo v. Comanche Mill & Mining Co., 57 Cal. 501; Breed v. Hobart, 187 Mo. 140, 86 S.W. 108; State exrel. Carleton v. District Court of Lewis and Clark County, 33 Mont. 138, 82 P. 789, 8 Ann.Cas. 752; Kromer v. Kear, 86 Ohio App. 309, 90 N.E.2d 422; Cherniak v. Prudential Ins. Co. of America, 339 Pa. 73, 14 A.2d 334.

Issues of law must be tried by the judge; but issues of fact must be tried by a jury, unless trial by jury is waived. G.S. § 1-172; Sparks v. Sparks, 232 N.C. 492, 61 S.E.2d 356. This is true even though the issues of fact are raised by pleadings in actions for the enforcement of equitable rights. Board of Com'rs of Stokes County v. George, 182 N.C. 414, 109 S.E. 77; Boles v. Caudle, 133 N.C. 528, 45 S.E. 835; Ely v. Early, 94 N.C. 1; Worthy v. Shields, 90 N.C. 192; Chasteen v. Martin, 81 N.C. 51.

Where issues of fact are raised by the pleadings in a cause and trial by jury is not waived, the verdict of a jury determining the issues of fact is an indispensable step in the trial of the cause, and the court is without power to enter a final judgment in the absence of such verdict. Miller v. Dunn, 188 N.C. 397, 124 S.E. 746.

A demurrer and a motion for judgment on the pleadings are somewhat related procedural devices. Each denies the legal sufficiency of the pleading of an adversary and raises an issue of law upon the facts stated in such pleading. The scope of a motion for judgment on the pleadings surpasses that of a demurrer, however, in that the former is an application for an immediate judgment in the movant's favor. 71 C.J.S., Pleading, § 425. Whether the tendency of motions for judgment on the pleadings to nullify the statutes permitting amendments to pleadings in cases where demurrers are sustained renders these procedural devices incompatible when they are simulataneously invoked is an interesting question which need not be answered on the present record. Ray v. Hill, 194 Wash. 321, 77 P.2d 1009.

A demurrer admits the truth of all well-pleaded factual allegations in the pleading to which objection is taken, and asserts as a legal proposition that those allegations do not state a cause of action or a defense, and submits that issue of law, and that issue of law alone, to the judge for decision. The admission inherent in a demurrer is not absolute. A demurrer admits the truth of the well-pleaded factual allegations in the pleading of the other side for the purpose, and only for the purpose, of enabling the judge to pass on the sufficiency in law of such pleading. In consequence, the conditional admission made by a demurrer forthwith ends if the demurrer is overruled. Kemp v. Funderburk, 224 N.C. 353, 30 S.E.2d 155; General American Life Insurance Co. v. Stadiem, 223 N.C. 49, 25 S.E.2d 202; Mallard v. Eastern Carolina Regional Housing Authority, 221 N.C. 334, 20 S.E.2d 281; Bowen v. Newborn, 218 N.C. 423, 11 S.E.2d 372; Leonard v. Maxwell, 216 N.C. 89, 3 S.E.2d 316; Vincent v. Powell, 215 N.C. 336, 1 S.E.2d 826; Toler v. French, 213 N.C. 360, 196 S.E. 312; McIntosh: North Carolina Practice and Procedure in Civil Cases, section 445.

The statute authorizing demurrers to answers is couched in these words: 'The plaintiff may in all cases demur to an answer containing new matter, where, upon its face, it does not constitute a counterclaim or defense; and he may demur to one or more of such defenses or counterclaims, and reply to the residue. Such demurrer shall be heard and determined as provided for demurrers to the complaint.' G.S. § 1-141.

This statute makes it plain that where an answer contains either in form or in substance a denial of essential allegations of the complaint, the whole answer is not demurrable. It specifies, however, that a demurrer is the proper method by which to determine the sufficiency of an affirmative defense set out in an answer. Smith v. Smith, 225 N.C. 189, 34 S.E.2d 148, 160 A.L.R. 460; Leary v. Virginia-Carolina Joint Stock Land Bank, 215 N.C. 501, 2 S.E.2d 570; Commerce Insurance Co. v. McCraw, 215 N.C. 105, 1 S.E.2d 369; Toler v. French, supra; Long v. Oxford, 108 N.C. 280, 13 S.E. 112; Foy v. Haughton, 83 N.C. 467; Lee v. Beaman, 73 N.C. 410; Blackwell v. Willard, 65 N.C. 555, 6 Am.Rep. 749. Indeed, it provides in express terms that where an answer contains several separate affirmative defenses, the plaintiff 'may demur to one or more of such defenses * * and reply to the residue.' But nothing in the statute authorizes a plaintiff to dissect a single affirmative defense into its several constituent paragraphs or sentences, and to demur separately to such paragraphs or sentences segregated from their respective contexts in the affirmative defense. Schneider v. Journal-Times Co., 247 Wis. 391, 20 N.W.2d 572.

Under the code of civil procedure, a decision upon a written demurrer is appealable by either party. G.S. § 1-130.

A court of record has inherent power to render judgment on the pleadings where the facts shown and admitted by the pleadings entitle a party to such judgment. City of Raleigh v. Fisher, 232 N.C. 629, 61 S.E.2d 897; 71 C.J.S., Pleading, § 424.

A motion for judgment on the pleadings is in the nature of a demurrer. mitchell v. Strickland, 207 N.C. 141, 176 S.E. 468; Pridgen v. Pridgen, 190 N.C. 102, 129 S.E. 419; Alston v. Hill, 165 N.C. 255, 81 S.E. 291. Its function is to raise this issue of law: Whether the matters set up in the pleading of an opposing party are sufficient in law to constitute a cause of action or a defense. City of Raleigh v. Fisher, supra; Adams v. Cleve, 218 N.C. 302, 10 S.E.2d 911.

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 are controverted by the pleading of his adversary. City of Raleigh v. Fisher, supra; Ingle v. State Board of Elections, 226 N.C. 454, 38 S.E.2d 566; Adams v. Cleve, supra; Oldham v. Ross, 214 N.C. 696, 200 S.E. 393; Crutchfield v. Foster, 214 N.C. 551, 200 S.E. 395; Churchwell v. Branch Banking & Trust Co., 181 N.C. 21, 105 S.E. 889; Alston v. Hill, supra; Helms v. Holton, 152 N.C. 587, 67 S.E. 1061. These admissions are made only for the purpose of procuring a judgment in the movant's favor. Hale v. Gardiner, 186 Cal. 661, 200 P. 598. Consequently, the movant is not precluded from having the action regularly tried upon any issues raised by the pleadings if his motion for judgment on the pleadings is denied. Minneapolis St. Ry. Co. v. City of Minneapolis, 229 Minn. 502, 40 N.W.2d 353; Vaughan v. Omaha Wimsett System Co., 143 Neb. 470, 9 N.W.2d 792; Southern Surety Co. v. Williams, 83 Okl. 171, 201 P. 244.

A motion for judgment on the pleadings is allowable only where the pleading of the opposite party is so fatally deficient in substance as to present no material issue of fact. North State Finance Co. v. Luck, 231 N.C. 110, 56 S.E.2d 1; Jones v. McBee, 222 N.C. 152, 153, 22 S.E.2d 226; Town of Dunn v. Tew, 219 N.C. 286, 13 S.E.2d 536. A complaint is fatally deficient in substance, and subject to a motion by the defendant for judgment on the pleadings if it fails to state a good cause of action for plaintiff and against defendant. City of Raleigh v. Fisher, supra. An answer is fatally deficient in substance and subject to a motion by the plaintiff for judgment on the pleadings if it admits every material averment in the complaint and fails to set up any defense or new matter sufficient in law to avoid or defeat the plaintiff's claim. Hoover v. Crotts, 232 N.C. 617, 61 S.E.2d 705; Wike v. Board of Trustees of New Bern Graded Schools, 229 N.C. 370, 49 S.E.2d 740; Carroll v. Brown, 228 N.C. 636, 46 S.E.2d 715; Smith v. Smith, 225 N.C. 189, 34 S.E.2d 148, 160 A.L.R. 460; Oldham v. Ross, supra; Churchwell v. Branch Banking & Trust Co., supra.

On a motion for judgment on the pleadings, the presiding judge should consider the pleadings, and nothing else. Johnson v. Metropolitan Life Insurance Co., 219 N.C. 445, 14 S.E.2d 405. He should not hear extrinsic evidence, or make findings of fact. 71 C.J.S., Pleading, § 508(2). If he concludes on his consideration of the pleadings that a material issue of fact has been joined between the parties, he should deny the motion in its entirety, and have the issue of fact tried and determined in the way appointed by law before undertaking to adjudicate the rights of the parties. The law does not authorize the entry of a judgment on the pleadings in any case where the pleadings raise an issue of fact on any single material proposition. Hoover v. Crotts, supra; Universal C. I. T. Credit Corp. v. Roberts, 230 N.C. 654, 55 S.E.2d 85; Brown v. Moore, 229 N.C. 406, 50 S.E.2d 5; Wike v. Board of Trustees of...