Warren v. Atlantic & Yadkin Railway Co., 156 N.C. 591 (1911)

Nov. 1, 1911 · Supreme Court of North Carolina

156 N.C. 591

J. H. WARREN v. ATLANTIC AND YADKIN RAILWAY COMPANY.

(Filed 1 November, 1911.)

Appeal and Error — Demurrer—Amended Complaint.

When an amended complaint is'filed by leave of court upon demurrer to the original one, an appeal by the defendant for the overruling of the demurrer thus filed will not be reviewed in the Supreme Court.

Appeal by defendant from April Term, 1911, of Guilford.

J. 1. Scales and Justice & Broadlmrst for plaintiff.

Wilson & Ferguson for defendant.

Pee CubiaM.

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 We cannot pass upon the demurrer to the original complaint, as it is superseded by the new complaint.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.