Mizell v. Ruffin

• Decision Date: 18 February 1896
• Citation: 23 S.E. 927,118 N.C. 69
• Parties: MIZELL et al. v. RUFFIN.
• Court: North Carolina Supreme Court

23 S.E. 927

118 N.C. 69

MIZELL et al. v. RUFFIN.

Supreme Court of North Carolina

February 18, 1896

Appeal from superior court, Bertie county; Boykin, Judge.

Action by Josiah Mizell and John C. Britton against Mary E. Ruffin administratrix of Joseph B. Ruffin, deceased. Judgment for defendant, and plaintiffs appeal. Reversed.

An allegation, in a complaint, that "there was and is a breach of the defendant's contract of warranty aforesaid," states a good cause of action, but defectively, and, unless objected to by demurrer, the defect is waived.

Pruden & Vann, for appellants.

F. D Winston, for appellee.

CLARK J.

The allegation that there "was and is a breach of defendant's contract of warranty aforesaid" states a good cause of action, but imperfectly, in that it does not allege wherein, as by a specific allegation of ouster, etc. This is a defective statement of a good cause of action, and not a statement of a defective cause of action. The former must be taken advantage of by a demurrer, whereupon, in the interest of justice, the court may allow the plaintiff to amend; and, if it is not demurred to, the defect is waived. The latter, a defective cause of action, could not be cured by an amendment, since an amendment totally changing the nature of the action (Ely v. Early, 94 N.C. 1), or admitting a change into a cause of action when there was none before (Richards v. Smith, 98 N.C. 509, 4 S.E. 625; Kron v. Smith, 96 N.C. 389, 2 S.E. 532; State v Turner, 96 N.C. 416, 2 S.E. 51), cannot be allowed. Clark's Code (2d Ed.) p. 224. A statement of a defective cause of action can be taken advantage of by a motion to dismiss in the supreme court, even when not taken below (rule 27 of this court, 22 S.E. viii.), or the court may dismiss the action ex mero motu (Hagins v. Railway Co., 106 N.C. 537, 11 S.E. 590; Clark's Code [2d Ed.] pp. 165 698); but the insufficient statement of a good cause of action, which is the case here, is cured if not demurred to ( Knowles v. Railroad Co., 102 N.C. 59, 9 S.E. 7; Johnson v. Finch, 93 N.C. 205). Such defect is cured by answering to the merits. Code § 242; Bowling v. Burton, 101 N.C. 176, 7 S.E. 701; Halstead v. Mullen, 93 N.C. 252; Warner v. Railroad Co., 94 N.C. 251. Besides, in the present case, the answer is framed on the idea that the averment of ouster was sufficiently stated, and denies the ouster, and also pleads the statute of limitation. It is a clear case of aider. Garrett v. Trotter, 65 N.C. 430, cited in Knowles v. Railroad Co., supra; Harris v. Sneeden, 104 N.C. 369, 10 S.E. 477; Bonds v. Smith, 106 N.C. 553, 11 S.E. 322; Clark's Code (2d Ed.) pp. 172, 173.

According to the evidence, the plaintiffs learned of the defect in their title more than 10 years before action was brought, but were not interfered with, and stopped of their own accord. This was not an ouster, and ...