East Carolina Lumber Co. v. Whitford, 250 N.C. 686 (1959)

Sept. 23, 1959 · Supreme Court of North Carolina

250 N.C. 686

EAST CAROLINA LUMBER COMPANY, Incorporated v. G. A. WHITFORD, JR., Administrator C.T.A. of the Estate of G. A. WHITFORD, deceased; SARAH LUCRETIA WHITFORD; G. A. WHITFORD, JR. and wife, LULA IPOCK WHITFORD; VERA WHITFORD TOLER and husband, ISIAH W. TOLER; CRAVEN COUNTY, a body politic and corporate; B. O. JONES, Trustee, and T. D. WARREN, JR., Receiver.

(Filed 23 September, 1959.)

Appeal by plaintiff from Stevens, J., February Term, 1959, of Chaven.

Civil action to remove alleged clouds from title to real estate and to recover damages for trespass. Demurrers to amended complaint were sustained >and the action dismissed. Plaintiff excepted and appealed.

Hugh L. Willcox, Boyce C. McClelland and Jones, Reed <fc Griffin for plaintiff, appellant.

Barden, Stith & McCotter, Ward & Tucker, Rodman & Rodman, Norman & Rodman, Thorp, Spruill, Thorp & Trotter, R. A. Nunn, B. B. Hollovjell and R. E. Whitehurst for defendants, appellees.

Pee Cueiam.

This action was commenced by summons issued August 12, 1958. (In Lumber Co. v. Whitford, 242 N.C. 730, 89 S.E. 2d 382, this Court passed upon the sufficiency of the complaint in a prior action between the same parties relating to the same lands.)

While different parties defendant and different lands are involved, plaintiff’s appeal presents the questions decided in Lumber Co. v. Pamlico County, ante, 681, filed simultaneously herewith. On authority thereof, the portion of the judgment sustaining the demurrers is affirmed, but the portion thereof dismissing the action is erroneous and should be stricken therefrom. It is so ordered. As so modified, the judgment is affirmed.

Modified and affirmed.

PaeKee, J., took no part in the consideration or decision of this case.

Higgins, J., not sitting.