Warren v. Atl. & Y. Ry. Co

• Citation: 156 N.C. 591,72 S.E. 481
• Court: North Carolina Supreme Court
• Decision Date: 01 November 1911
• Parties: WARREN v. ATLANTIC & Y. RY. CO.

72 S.E. 481

156 N.C. 591

WARREN

v.ATLANTIC & Y. RY. CO.

Supreme Court of North Carolina.

Nov. 1, 1911.

Appeal and Error (§ 679^*)—Review.

The allowance of an amended complaint superseded the original complaint, requiring defendant to either demur to or answer the amended complaint, so that the Supreme Court cannot pass upon the sufficiency of the original complaint upon appeal taken after the amendment was filed.

[Ed. Note.—For other cases, see Appeal and Error, Dec. Dig. § 679.*] Appeal from Superior Court, Guilford County; Daniels, Judge.

Action by J. H. Warren against the Alantic & Yadkin Railway Company. Order overruling a demurrer to the complaint, and defendant appeals. Appeal dismissed.

Wilson & Ferguson, for appellant.

J. I.Scales and Justice & Broadhurst, for appellee.

PER CURIAM. This is an action for personal injury heard upon demurrer at April term, 1911. The demurrer was overruled, and defendant excepted and appealed.

It was admitted upon the argument in this court that when the demurrer was overruled the plaintiff asked and obtained permission to file an amended complaint. The demurrer was interposed to the original complaint. We cannot pass upon the demurrer to the original complaint, as it is superseded by the new complaint. When the plaintiff by permission filed an amended complaint at the time when the demurrer was overruled, the defendant should have either demurred, or answered to the new complaint. As this amended complaint is not in the record, we cannot tell whether it states a cause of action or not. It may allege very different facts from the first complaint. The defendant will be allowed to demur or answer the amended complaint.

Appeal dismissed.

*.For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r indexes