Morgan v. High Penn Oil Co.

• Decision Date: 10 December 1952
• Docket Number: No. 671,671
• Citation: 73 S.E.2d 477,236 N.C. 615
• Parties: MORGAN et al. v. HIGH PENN OIL CO. et al.
• Court: North Carolina Supreme Court

Page 477

73 S.E.2d 477

236 N.C. 615

MORGAN et al. v. HIGH PENN OIL CO. et al.

No. 671

Supreme Court of North Carolina.

Dec. 10, 1952

Frazier & Frazier, Greensboro, for plaintiffs, appellees.

Roberson, Haworth & Reese, High Point, for defendants, appellants.

ERVIN, Justice.

This question arises at the threshold of the appeal: Is an order overruling a demurrer ore tenus appealable?

The answer is 'No.' Hood, Com'r of Banks v. Elder Motor Co., 209 N.C. 303, 183 S.E. 529; Griffin v. Bank of Coleridge, 205 N.C. 253, 171 S.E. 71; Mountain Park Institute v. Lovill, 198 N.C. 642, 153 S.E. 114; Chambers v. Seaboard Air Line R. R. Co., 172 N.C. 555, 90 S.E. 590; Shelby v. Charlotte Electric Railway, Light & Power Co., 147 N.C. 537, 61 S.E. 377; Hall v. Southern Railroad Co., 146 N.C. 345, 59 S.E. 879; Burrell v. Hughes, 116 N.C. 430, 21 S.E. 971; Joyner v. Roberts, 112 N.C. 111, 16 S.E. 917; Sprague v. Bond, 111 N.C. 425, 16 S.E. 412; McIntosh: North Carolina Practice and Procedure in Civil Cases, section 676.

The reasons for the rule that an appeal does not lie from an order overruling a demurrer ore tenus were thus stated in Joyner v. Roberts, supra: 'It is contended, however, that this is in effect a demurrer ore tenus, and that, therefore, an appeal lies. From the overruling of a formal demurrer an appeal does lie; but there is this protection against abuse: That, if the demurrer is frivolous, judgment is at once granted the plaintiff. Code, § 388 [Now G.S. 1-219.] But there is no such remedy on overruling this motion. * * * If an appeal lay in such ases, every defendant in every case could procure 6 or 12 months' delay by simply objecting to the jurisdiction, or to the sufficiency of the complaint, no matter how plain the case, or how utterly unfounded the grounds of the objection, since, as has been already said, judgment cannot be entered as when a frivolous demurrer is filed. To rule that an appeal lay in such case would be simply to establish a 'stay law.' There is less excuse for an appeal in this particular respect, since the defendants cannot possibly be damaged by delaying the appeal till the final judgment, because, even though they sould fail to note an exception, the objection to the jurisdiction, and for failure of the complaint to state a cause of action, can still be taken advantage of for the first time in this court. Rule 27 of the supreme court. (Now Rule 21). Those grounds of objection cannot be waived by proceeding to trial. * *...