Rayburn v. Rayburn, 218 N.C. 514 (1940)

Nov. 20, 1940 · Supreme Court of North Carolina

218 N.C. 514

MRS. LOLA M. RAYBURN v. JOSEPH P. RAYBURN.

(Filed 20 November, 1940.)

1. Judgments § 5—

In an action to have an agreement between the parties made a judgment of the court in accordance with the provisions of the agreement, defendant’s demurrer is properly overruled.

2. Judgments § 11 — -

The action of the court in overruling defendant’s demurrer and at the same time rendering judgment for plaintiff as prayed for in the complaint is error, since defendant has ten days after the demurrer is sustained or, if an appeal is taken, ten days after the certificate of the Supreme Court is received, in which to file answer. C. S., 515.

Appeal by defendant from Grady, Emergency Judge, at May Term, 1940, of MeckleNbueg.

Plaintiff instituted action to cause an agreement between tbe parties to be made tbe judgment of tbe court, in accord with tbe provisions of tbe contract. Defendant demurred. Demurrer overruled, and at tbe same time judgment was rendered for plaintiff as prayed for in tbe complaint. Defendant appealed.

Henderson & Henderson for plaintiff, appellee.

J. F. Flowers for defendant, appellant.

DeviN, J.

Tbe able judge who beard this cause below properly overruled tbe demurrer, but was in error in rendering judgment for tbe plaintiff without allowing defendant tbe statutory period within wbicb to answer.

Tbe applicable procedural statute, G. S., 515, contains this provision : “If tbe demurrer is overruled, tbe answer shall be filed within ten days after receipt of tbe judgment, if there is no appeal, or within ten days after receipt of certificate of the Supreme Court, if there is an appeal.” Law v. Cleveland, 213 N. C., 289, 195 S. E., 809; Cody v. Hovey, 217 N. C., 407; Adams v. Cleve, ante, 302.

The prescribed period for answering not having expired, judgment for want of answer was improperly entered and should be stricken out, and an opportunity afforded defendant to answer, if he so desires.

The cause is remanded for such further proceeding in accord with the statute as the parties may elect.

Error and remanded.