Parker v. Underwood, 761

Decision Date15 January 1954
Docket NumberNo. 761,761
CourtNorth Carolina Supreme Court
PartiesPARKER, v. UNDERWOOD et al.

Arthur Vann, Durham, for plaintiff appellant.

Edwards, Sanders & Everett, Durham, for defendant appellee.

WINBORNE, Justice.

Two questions are presented on this appeal:

1. Did the Honorable C. W. Hall, a special judge of the Superior Court of North Carolina, residing in the Tenth Judicial District, have jurisdiction in Chambers to hear and rule upon the demurrer of defendant filed in this action then pending in the District of his residence?

A similar question was considered and decided affirmatively in opinion this day delivered in the case of Spaugh v. City of Charlotte, N.C., 79 S.E.2d 748, from the Fourteenth Judicial District. And on authority of the decision there made, the question above stated and here presented merits, and is given an affirmative answer.

2. Is the demurrer well taken, and, hence, the action of the court in sustaining it correct? We so hold.

Plaintiff, appellant, contends that under the provisions of G.S. § 20-71.1, subparagraph (a), the allegations of the complaint are sufficient to make out a prima facie case against the defendant Thomas Hugh Underwood. On the other hand, the appellee contends, and properly so, that the provisions of this statute are a rule of evidence, State v. Scoggin, 236 N.C. 19, 72 S.E.2d 54, and do not relieve the plaintiff of alleging the ultimate facts on which to base a cause of actionable negligence.

Hence, for the reasons stated in the demurrer, the complaint fails to state a cause of action against the demurrant.

Therefore, the judgment below is


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16 cases
  • Whiteside v. McCarson, 30
    • United States
    • North Carolina Supreme Court
    • September 23, 1959
    ...240 N.C. 217, 81 S.E.2d 644. As to the necessity for such pleading: Hartley v. Smith, 239 N.C. 170, 79 S.E.2d 767; Parker v. Underwood, 239 N.C. 308, 79 S.E.2d 765; Osborne v. Gilreath, 241 N.C. 685, 86 S.E.2d G.S. § 20-71.1 established a new rule of evidence. In passing from the rule state......
  • Belmany v. Overton, 765
    • United States
    • North Carolina Supreme Court
    • May 24, 1967 the identity of the demurrant, the quoted phraseology is identical with that used in a demurrer to the complaint in Parker v. Underwood, 239 N.C. 308, 79 S.E.2d 765. In Parker v. Underwood, supra, the demurring defendant, the father-owner, was not present when the accident occurred. His ......
  • Hartley v. Smith
    • United States
    • North Carolina Supreme Court
    • January 15, 1954
    ...still necessary for the party aggrieved to allege both negligence and agency in his pleading and to prove both at the trial. Parker v. Underwood, N.C., 79 S.E.2d 765. It is urged, however, that the court later correctly charged the law in respect to G.S. § 20-71.1. Even if this be conceded,......
  • Scott v. Scott
    • United States
    • North Carolina Supreme Court
    • June 14, 1963
    ...461; that a special judge in the county of his residence has jurisdiction to hear and determine a demurrer in chambers, Parker v. Underwood, 239 N.C. 308, 79 S.E. 2d 765, and to hear and determine a controversy without action, Spaugh v. Charlotte, 239 N.C. 149, 79 S.E.2d In all matters not ......
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