Shelby v. Charlotte Electric Ry

• Decision Date: 29 April 1908
• Citation: 61 S.E. 377,147 N.C. 537
• Court: North Carolina Supreme Court
• Parties: SHELBY. v. CHARLOTTE ELECTRIC RY., LIGHT & POWER CO.

147 N.C. 537

61 S.E. 377

SHELBY.

v. CHARLOTTE ELECTRIC RY., LIGHT & POWER CO.

Supreme Court of North Carolina.

April 29, 1908.

1. Pleading—Defenses—Demurrer.

Plaintiff may demur to one of two separate and distinct defenses in the answer.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 39, Pleading, § 489.]

2. Appeal—Overruling Demurrer to Separate Defenses.

While, under Revisal 1905, § 587, authorizing an appeal from an order affecting a substan tial right, an appeal may be taken from an order sustaining a demurrer to one of several defenses pleaded, an order overruling such demurrer is not appealable, but is reviewable only on appeal from a final judgment under the rule forbidding fragmentary appeals.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 2, Appeal and Error, §§ 688-698.]

3. Same — Demurrer to Whole Action or Defense.

An appeal lies from an order sustaining or overruling a demurrer to a whole cause of action or defense.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 2, Appeal and Error, §§ 688-698.]

4. Same—Motion to Dismiss.

Denial of motions to dismiss for want of jurisdiction, or that the complaint does not state a cause of action, even though they go to the whole action, are not appealable.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 2, Appeal and Error, % 720.]

Appeal from Superior Court, Mecklenburg County; Moore, Judge.

Action by W. H. Shelby against the Charlotte Electric Railway, Light & Power Company. From an order overruling a demurrer to one of defendant's separate defenses, plaintiff appeals. Dismissed.

Stewart & McRae, for appellant.

Tillett & Guthrie, for appellee.

CLARK, C. J. The defendant pleaded in its answer two separate and distinct defenses. The plaintiff demurred to one of them, as he had a right to do. Revisal 1905, § 435. The demurrer was overruled, and the defendant appealed. This is obnoxious to the rule forbidding fragmentary appeals. An appeal from a ruling upon one of several issues will be dismissed. Hines v. Hines, 84 N. C. 122; Arrington v. Arrington, 91 N. C. 301. The plaintiff should have noted his exception, and the judge should have proceeded with the trial upon both issues. If both issues or only the issue as to this defense were found with the plaintiff, he would not need to appeal as to this ruling. If the other defense were found against the plaintiff, ordinarily he would not need to review the order overruling the demurrer as to this; but, should he desire to do so, the overruling the demurrer as to this issue can be as well reviewed on the appeal from the final judgment. It is true that the plaintiff will have to try this issue, but, aside from the presumption that the judge ruled rightly, it is better practice that the issue raised by the second defense should be tried even unnecessarily than that an action should thus be cut in two and hung up in the courts, till it is determined, after much delay, on appeal whether two issues or one should be tried. It is better to try both, and, after final verdict and judgment, pass upon the validity of the defense demurred to, if the result is such as to make the plaintiff still desirous to review it, which he will not if he gain the case, nor if he lose on the other issue without ground of exception thereto.

If this demurrer to one defense had been sustained, a different situation would be presented, and an appeal would lie at once, for to try the case on one defense might cause a verdict and judgment against the defendant which might be defeated if the other defense were passed on. That would "affect a substantial right"; and hence an appeal lies (Revisal 1905, § 587); whereas no harm would result from trying both defenses, on issues as to each, since the...