Dillingham v. Kligerman

69 S.E.2d 500, 235 N.C. 298, 1952 N.C. LEXIS 374

• Court: Supreme Court of North Carolina
• Decided: March 19, 1952
• Docket: 95
• Status: Published

Opinion

JohnsoN, J.

There is no allegation in tbe complaint that any one of tbe defendants whose demurrers were sustained has or claims any interest in tbe lands referred to in tbe complaint, nor that any one of these defendants is in anywise obligated to tbe plaintiff. It nowhere appears on tbe face of tbe complaint that tbe plaintiff is entitled to relief of any sort against any of these defendants. Besides, it appears upon tbe face of tbe record that there was no acknowledgment or proof of tbe execution of tbe contract by Mrs. Minnie Levy (now Mrs. Minnie Levy ELiger-man), tbe seller who allegedly contracted to convey tbe disputed lands to tbe plaintiff. Therefore, tbe court properly sustained tbe demurrers filed by tbe appellees. As to tbem, tbe complaint was wholly insufficient to allege a cause of action. Tbe statute (G.S. 1-151) which requires liberal construction in favor of tbe pleader, neither requires nor permits tbe court to construe into a pleading that which it does not contain. Jones v. Furniture Co., 222 N.C. 439, 23 S.E. 2d 309; Bank v. Gahagan, 210 N.C. 464, 181 S.E. 580.

Tbe question whether on demurrer sustained tbe action was dismissed prematurely is not presented for decision. This question, if raised by tbe exception to tbe judgment, not being discussed in appellant’s brief nor supported by authority, will be treated as abandoned. Rule 28, Rules of Practice in the Supreme Court, 221 N.C. 562 et seq. See also Gray v. Cartwright, 114 N.C. 49, top p. 52, 93 S.E. 432; S. v. Howley, 220 N.C. 113, 16 S.E. 2d 705; Maynard v. Holder, 219 N.C. 470, 14 S.E. 2d 415.

Affirmed.