Citizens Bank of Marshall v. Gahagan

Supreme Court of North Carolina

Citizens Bank of Marshall v. Gahagan

187 S.E. 580, 210 N.C. 464, 1936 N.C. LEXIS 130

CourtSupreme Court of North Carolina

DecidedSeptember 23, 1936

StatusPublished

Cited by15 cases

This text of 187 S.E. 580 (Citizens Bank of Marshall v. Gahagan) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Citizens Bank of Marshall v. Gahagan, 187 S.E. 580, 210 N.C. 464, 1936 N.C. LEXIS 130 (N.C. 1936).

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Opinion

Stacy, C. J.

The motion of Bonnie Gahagan that she be eliminated as a defendant seems well founded and should have been allowed. Winders v. Southerland, 174 N. C., 235, 93 S. E., 726; Worth v. Trust Co., 152 N. C., 242, 67 S. E., 590. Indeed, it is not alleged in the complaint, other than inferentially perhaps, that any of the defendants ever qualified as executors under the will of Wade Gahagan, deceased.

The complaint alleges no cause of action against the defendants, individually. Hence, the demurrer thus interposed should have been sustained.

Nor is it thought that sufficient facts are stated to constitute a cause of action against the executors. The allegation of the amount “now due and owing the defendant Grady Gahagan” seems only a conclusion of the pleader. The facts upon which this conclusion rests are not stated. *466 It is not alleged bow the indebtedness arose or that it is covered by plaintiff’s assignment.

While “unnecessary repetition” is condemned by the statute, C. S., 506, and allegations of pleadings are to be construed liberally “with a view to substantial justice between the parties,” C. S., 535, still it is a necessary requirement that the complaint shall contain “a plain and concise statement of the facts constituting a cause of action,” O. S., 506, which means that it shall contain a plain and concise statement of all the facts necessary to enable the plaintiff to recover. Comrs. v. McPherson, 79 N. C., 524; Ins. Co. v. Dey, 206 N. C., 368, 174 S. E., 89.

A demurrer admits facts properly pleaded, but not inferences or conclusions of law. Distributing Corp. v. Maxwell, 209 N. C., 47, 182 S. E., 724; Phillips v. Slaughter, 209 N. C., 543, 183 S. E., 897; Hussey v. Kidd, 209 N. C., 232, 183 S. E., 355; Phifer v. Berry, 202 N. C., 388, 163 S. E., 119. The present complaint would seem to be bad as against the demurrers.

It is still open to the plaintiff, however, to ask to be allowed to amend its complaint, if so advised. C. S., 515; Oliver v. Hood, Comr., 209 N. C., 291, 183 S. E., 657.

It should be observed that this is not an administration suit. Rigsbee v. Brogden, 209 N. C., 510, 184 S. E., 24.

Reversed.

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Stacy, C. J.

The motion of Bonnie Gahagan that she be eliminated as a defendant seems well founded and should have been allowed. Winders v. Southerland, 174 N. C., 235, 93 S. E., 726; Worth v. Trust Co., 152 N. C., 242, 67 S. E., 590. Indeed, it is not alleged in the complaint, other than inferentially perhaps, that any of the defendants ever qualified as executors under the will of Wade Gahagan, deceased.

The complaint alleges no cause of action against the defendants, individually. Hence, the demurrer thus interposed should have been sustained.

Nor is it thought that sufficient facts are stated to constitute a cause of action against the executors. The allegation of the amount “now due and owing the defendant Grady Gahagan” seems only a conclusion of the pleader. The facts upon which this conclusion rests are not stated. *466 It is not alleged bow the indebtedness arose or that it is covered by plaintiff’s assignment.

While “unnecessary repetition” is condemned by the statute, C. S., 506, and allegations of pleadings are to be construed liberally “with a view to substantial justice between the parties,” C. S., 535, still it is a necessary requirement that the complaint shall contain “a plain and concise statement of the facts constituting a cause of action,” O. S., 506, which means that it shall contain a plain and concise statement of all the facts necessary to enable the plaintiff to recover. Comrs. v. McPherson, 79 N. C., 524; Ins. Co. v. Dey, 206 N. C., 368, 174 S. E., 89.

A demurrer admits facts properly pleaded, but not inferences or conclusions of law. Distributing Corp. v. Maxwell, 209 N. C., 47, 182 S. E., 724; Phillips v. Slaughter, 209 N. C., 543, 183 S. E., 897; Hussey v. Kidd, 209 N. C., 232, 183 S. E., 355; Phifer v. Berry, 202 N. C., 388, 163 S. E., 119. The present complaint would seem to be bad as against the demurrers.

It is still open to the plaintiff, however, to ask to be allowed to amend its complaint, if so advised. C. S., 515; Oliver v. Hood, Comr., 209 N. C., 291, 183 S. E., 657.

It should be observed that this is not an administration suit. Rigsbee v. Brogden, 209 N. C., 510, 184 S. E., 24.

Reversed.

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Bluebook (online)

187 S.E. 580, 210 N.C. 464, 1936 N.C. LEXIS 130, Counsel Stack Legal Research, https://law.counselstack.com/opinion/citizens-bank-of-marshall-v-gahagan-nc-1936.

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