Garrison v. Williams

Decision Date19 May 1909
Citation64 S.E. 783,150 N.C. 674
PartiesGARRISON et al. v. WILLIAMS et al.
CourtNorth Carolina Supreme Court

Appeal from Superior Court, Burke County; Ferguson, Judge.

Action by Ida E. Garrison and others against Richard Williams and others. A demurrer to the complaint was sustained, and plaintiffs appeal. Reversed.

J. M Mull and S. J. Ervin, for appellants.

Avery & Ervin and Avery & Avery, for appellees.


This action was brought by the plaintiffs for the purpose of having the defendants declared trustees for the feme plaintiff, Ida E. Garrison, of certain tracts of land described in the amended complaint, containing about 1,500 acres. She alleged: That on August 14, 1900, she duly entered said land in the office of the entry taker of Burke county that in the year 1902 the defendant Richard Williams entered the same land, and his rights under said entry, if any, have passed to his codefendants with notice of the prior entry of the feme plaintiff; that on December 22, 1902, just nine days before the time limited for the feme plaintiff to take out her grant, the defendants protested her entries, and thereby prevented her from having a grant issued during the pendency of the proceedings to determine the validity of the protest that while said proceeding was pending, and during the year 1904, the defendants caused grants to be issued upon the entry laid by the said Richard Williams and thereby acquired, though unlawfully, wrongfully, and fraudulently, the legal title to the premises; that the protest of the defendants was at August term, 1905, of the superior court decided against them, and the feme plaintiff thereupon, and within nine days after the rendition of the judgment of the court in the said proceeding, obtained warrants of survey and received grants from the state for the said lands. Answers were filed by the defendants denying the fraud alleged in the complaint and esserting title to the land in dispute. When the case was called for trial, the defendants demurred ore tenus to the complaint upon the ground that it does not state facts sufficient to constitute a cause of action. The demurrer was sustained. The plaintiffs excepted and assigned the following errors: "(1) That the court permitted the defendants, who had filed an answer, to demur ore tenus to the amended complaint, when the cause was upon the calendar for trial and had been reached and called for trial. (2) That the court refused to tax the defendants with the cost of the witnesses subpoenaed and in attendance upon the court for the trial of the cause; the same being upon the calendar and having been reached and called for trial upon the pleadings. (3) That the court sustained the defendant's demurrer ore tenus and ruled that the amended complaint failed to state a cause of action. (4) That the judgment rendered was erroneous."

Disposing of the question of procedure in limine, we have repeatedly held that, where a complaint states no cause of action, such a defect is not waived by answering. The defendant may demur ore tenus, and furthermore this court may take notice, ex mero motu, of the insufficiency of the complaint in this respect. If the cause of action, as stated by the plaintiff is inherently bad, why permit him to proceed further in the case, for, if he proves everything that he alleges, he must eventually fail in the action? Blackmore v. Winders, 144 N.C. 212, 56 S.E. 874; Elam v. Barnes, 110 N.C. 73, 14 S.E. 621. Our decisions upon...

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