Love v. The Comm'rs of Chatham Cnty

• Decision Date: 30 June 1870
• Citation: 64 N.C. 706
• Court: North Carolina Supreme Court
• Parties: ROBERT LOVE v. THE COMMISSIONERS OF CHATHAM COUNTY.

64 N.C. 706

ROBERT LOVE

v.THE COMMISSIONERS OF CHATHAM COUNTY.

Supreme Court of North Carolina.

June Term, 1870.

A demurrer under the C. C. P. differs from the former demurrer at law in this: every demurrer, whether for substance or form, is now special, and must distinctly specify the ground of objection to the complaint, or be disregarded; it differs from the former demurrer in equity, in that the judgment overruling it is final, and decides the case, unless the pleadings are amended, by leave to withdraw the demurrer and put in an answer.

The provisions of the C. C. P., sec. 99, as regards complaints which do not contain facts sufficient to constitute a cause of action, are satisfied by arresting the judgment in cases where they apply.

Claims against counties must be presented for payment and refused, before an action can be maintained because of their non-payment; therefore,

Where the complaint contained no averment of such demand and refusal, judgment was arrested.

( Ransom v. McCleese, ante 17, approved.)

CIVIL ACTION, tried before Tourgee, J., at Spring Term 1870 of CHATHAM Court.

The plaintiff alleged that the former County Court of Chatham had incurred the two debts for which he now demanded judgment, in building, and repairing bridges; and that they had been allowed, after being scaled. No demand for such debts was alleged.

The defendant demurred because the complaint did not “state facts sufficient to constitute a cause of action.”

His Honor overruled the demurrer, and the defendants appealed.

Headen, for the appellants .

Manning, contra .

PEARSON, C. J.

We concur with his Honor. The demurrer ought to be overruled, or rather “disregarded.” It is in these words: “The complaint does not contain facts sufficient to constitute a cause of action.” This, under the old procedure, was a general demurrer, and embraced only matter of substance, as distinguished from a special demurrer, for matter of form, which, by statute of Ann, must set forth the cause of demurrer specially. Defects in form were to be set out specially, in order to give the opposite party an opportunity to amend.

Under the C. C. P., sec. 96, “The demurrer shall distinctly specify the ground of objection to the complaint; unless it does so, it may be disregarded.” These are broad words and include demurrers for defects in substance, as well as defects of form. So, the demurrer in our case ought to have been disregarded, because it does not distinctly specify the ground of objection. But it is said, section 99 provides, if no objection be taken by demurrer or answer, it shall be deemed to be waived, except objections to the jurisdiction, and the objection that the complaint does not contain facts sufficient to constitute a cause of action; and that the effect of this is, that this section excepts those two objections out of the rule, and allows the demurrer to be general in form. We are not able to see how this consequence follows. The rule is positive. It applies to all demurrers, and cannot be modified by implication. Indeed, if we resort to implication, section 97, in regard to amendments, furnishes a much stronger reason for adhering strictly to the rule, as it shows the reason for requiring the ground of objection to be distinctly specified; i. e., in order to have the objection removed by amendment, and so, put the case on its merits.

For instance, in our case, had the demurrer specified that the ground of objection was the omission to aver a demand before action brought, the plaintiff would have amended the complaint in this particular; or, if in fact, a demand had not been made, would have taken a non-suit, and begun again. Whereas, the defendant, by saying nothing about the objection in the Court below, gets the plaintiff up to ...