Boles v. Graham

105 S.E.2d 296, 249 N.C. 131, 1958 N.C. LEXIS 427

• Court: Supreme Court of North Carolina
• Decided: October 29, 1958
• Status: Published

Opinion

PeR Curiam.

The nonsuit removed the defendants’ objections raised by the first demurrer. They have abandoned their assignment of error based on the refusal of the court to require the plaintiffs to make their complaint more definite. They now present for review only that part of the court’s order overruling the second demurrer interposed in the superior court upon the ground the complaint failed to state a cause of action.

Appeal does not lie from an order overruling a demurrer in any case except where it is interposed as a matter of right for misjoinder of parties and causes. Prior to trial on the merits, an order overruling á demurrer for failure’to state a cause of action can be reviewed only by writ of certiorari. Rule 4(a), Rules of Practice in the Supreme Court, 242 N.C. 766. The defendants are here prematurely.

Appeal Dismissed.

PARKER, J., not sitting.