Moore v. Hobbs, 77 N.C. 65 (1877)

June 1877 · Supreme Court of North Carolina
77 N.C. 65


P leading — Demurrer—Answer.

;.If the cause assigned for demurrer does not appear in the complaint it can he taken advantage of only by answer.

Civil ActioN tried at Spring Term, 1877,.of ChowaN Superior Court, before Cannon, J.

The. defendants demurred to the complaint. His Honor -overruled the demurrer and gave judgment for plaintiff and tfche defendants appealed.

*66Messrs. Mullen $ Moore, for plaintiff.

Messrs. Gilliam ¿> Pruden, for defendants.

Read®, J.

The causes assigned for demurrer do not ap--pear in the complaint, and therefore can be taken advantage of only by answer.

The case will be remanded to the end that the defendants-may answer, and on failure to do which there should be-judgment for plaintiff.

We call attention to the fact that C. C. P. § 91, requires-that the “complaint” should contain “a plain and concise-statement of the facts constituting the cause of’ action.” It' may be that the complaint in this case is at fault in that'particular. If so, it may be amended by leave.

There was no error in overruling the. demurrer but there^ was error in giving judgment for the demand without allow'-ing an answer. Bat: Rev. ch. 17, § 181.

Case remanded. Each party will pay his own costs in this* Court.

Per Cukiam. Judgment accordingly-