Lassiter v. Adams

• Decision Date: 06 March 1929
• Docket Number: 87.
• Parties: LASSITER v. ADAMS et al.
• Court: North Carolina Supreme Court

146 S.E. 808

196 N.C. 711

LASSITER v. ADAMS et al.

No. 87.

Supreme Court of North Carolina

March 6, 1929

Appeal from Superior Court, Johnston County; F. A. Daniels, Judge.

Action by Carah E. Lassiter against J. H. Adams, administrator of A. G. Adams, and others, for entering on and building a road through plaintiff's land while defendants were Township Road Commissioners. Judgment for defendants, and plaintiff appeals. Affirmed.

Failure of complaint to state cause of action may be taken advantage of any time, and defendant may demur ore tenus.

A. M. Noble, of Smithfield, for appellant.

James D. Parker, of Smithfield, for appellees.

PER CURIAM.

It is admitted in the answer and set out in the judgment that the defendants at the time of the alleged trespass were acting in their capacity as road commissioners of Bentonville township. There is no allegation that they acted maliciously or corruptly. Hipp v. Farrell, 169 N.C. 551, 86 S.E. 570; Id., 173 N.C. 167, 91 S.E. 831. The judgment contains the further recital that the action was instituted against public road officials; that more than six months intervened between the completion of the road and the commencement of the action; that the plaintiff knew within two months of the completion of the road that it had been laid out and opened; and that it has been accepted and is now used by the county authorities. C. S. § 3667. On motion of the defendants, the court dismissed the action. The judgment is affirmed. An objection that the complaint does not state a cause of action may be taken advantage of at any time. In such case the defendant may demur ore tenus, or the Supreme Court of its own motion may take notice of the insufficiency. Johnson v. Finch, 93 N.C. 205; Garrison v. Williams, 150 N.C. 674, 64 S.E. 783; McDonald v. MacArthur, 154 N.C. 122, 69 S.E. 832.

Affirmed.