Tallassee Power Co v. Peacock
| Decision Date | 20 November 1929 |
| Docket Number | (No. 405.) |
| Court | North Carolina Supreme Court |
| Parties | TALLASSEE POWER CO . v. PEACOCK et al. |
Appeal from Superior Court, Davidson County; Walter E. Moore, Judge.
Action by the Tallassee Power Company against Mary B. Peacock and others. Judgment for defendants, and plaintiff appeals. Reversed.
Action for the specific performance of a contract to convey land.
Prom judgment sustaining defendants' demurrer ore tenus to the complaint, and dismissing the action, plaintiff appealed to the Supreme Court.
Raper & Raper, of Lexington, and R. L. Smith & Sons, of Albemarle, for appellant.
Spruill & Olive, of Lexington, for appellees.
CONNOR, J. [1] This action was begun in the superior court of Davidson county on December 8, 1927. On December 9, 1927, plaintiff filed its duly verified complaint. On January 4, 1928, defendants demurred in writing to the complaint on the ground that the facts stated therein are not sufficient to constitute a cause of action. This demurrer was overruled by Stack, J., at May term, 1928, and defendants were allowed 60 days within which to answer the complaint. Defendants excepted to the order overruling the demurrer and gave notice of their appeal to the Supreme Court. The appeal was not perfected. The order of Judge Stack has not been reversed on appeal by this court, and is therefore conclusive in the superior court of the question presented by the demurrer, in writing, to wit: Whether the facts stated in the complaint are sufficient to constitute a cause of action upon which plaintiff is entitled to the relief prayed for. C. S. § 601.
On June 9, 1928, defendants filed an answer to the complaint in which they denied the material allegations thereof. On March 18, 1929, by leave of court obtained at February term, 1929, defendants fileu an amended answer, in which, after again denying the material allegations of the complaint, they alleged matters in further defense of plaintiff's recovery in this action. Plaintiff filed a reply to the amended answer, in which it denied the allegations of the answer.
The action came on for trial on the issues raised by the pleadings at July term, 1929, before Moore, J., and a jury. After the jury had been impaneled and after the pleadings had been read, defendants demurred ore tenus to the complaint, and moved that the action be dismissed, on the ground that the facts stated in the complaint are not sufficient to constitute a cause of action. The demurrer ore tenus was sustained and the motion that the action be dismissed was allowed. Plaintiff excepted to the judgment, sustaining the demurrer ore tenus, and dismissing the action, and appealed to this court, contending that there was error in the judgment.
Ordinarily, an objection that the complaint filed in a civil action does not state a cause of action may be taken advantage of at any time. The objection may be made in writing before answer filed, or it may be made orally after answer filed. The right to demur to the complaint on that ground, or on the ground that it appears upon the face of the complaint that the court is without jurisdiction of the cause of action alleged in the complaint, Is not waived by the filing of an answer. C. S. § 518. In either case, notwithstanding answer filed, the defendant may demur ore tenus in the...
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