Dudley Ex Rel. Dudley v. Dudley

Supreme Court of North Carolina

Dudley Ex Rel. Dudley v. Dudley

107 S.E.2d 918, 250 N.C. 95, 1959 N.C. LEXIS 431

CourtSupreme Court of North Carolina

DecidedApril 8, 1959

Docket379

StatusPublished

Cited by2 cases

This text of 107 S.E.2d 918 (Dudley Ex Rel. Dudley v. Dudley) 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

Dudley Ex Rel. Dudley v. Dudley, 107 S.E.2d 918, 250 N.C. 95, 1959 N.C. LEXIS 431 (N.C. 1959).

Pincite

Opinion

Higgins, J.

G.S. 1-131 provides: “Within thirty days after the return of the judgment upon the demurrer, if there is no appeal, or within thirty days after the receipt of the certificate from the Supreme Count, if there is an appeal, if the demurrer is sustained the plaintiff *96 may move, upon, three days’ notice, for leave to amend the complaint. If this is not granted, judgment shall be entered dismissing the action.” Burrell v. Transfer Co., 244 N.C. 662, 94 S.E. 2d 829; Mills v. Richardson, 240 N.C. 187, 81 S.E. 2d 409; Teague v. Oil Co., 232 N.C. 469, 61 S.E. 2d 345.

The statute and the decisions 'authorized dismissal of the action if leave -to amend is not obtained. Judge Gambill merely dismissed the amended complaint, thus leaving the cause upon the docket without a pleading. “An order sustaining the demurrer in effect merely strikes the complaint. The action remains on the docket sans a pleading and will be dismissed only in the event the plaintiff fails to amend or file a new complaint as he is by statute permitted to do.” Teague v. Oil Co., supra.

Judge Gambill’s order dismissing the amended complaint (filed without leave) did not dismiss the action but merely left it still, pending without a pleading. The defendant has the right to move that the •action foe dismissed for failure to comply with the statutory l-equirement. The order dismissing the amended complaint is

Affirmed.

Free access — add to your briefcase to read the full text and ask questions with AI

Higgins, J.

G.S. 1-131 provides: “Within thirty days after the return of the judgment upon the demurrer, if there is no appeal, or within thirty days after the receipt of the certificate from the Supreme Count, if there is an appeal, if the demurrer is sustained the plaintiff *96 may move, upon, three days’ notice, for leave to amend the complaint. If this is not granted, judgment shall be entered dismissing the action.” Burrell v. Transfer Co., 244 N.C. 662, 94 S.E. 2d 829; Mills v. Richardson, 240 N.C. 187, 81 S.E. 2d 409; Teague v. Oil Co., 232 N.C. 469, 61 S.E. 2d 345.

The statute and the decisions 'authorized dismissal of the action if leave -to amend is not obtained. Judge Gambill merely dismissed the amended complaint, thus leaving the cause upon the docket without a pleading. “An order sustaining the demurrer in effect merely strikes the complaint. The action remains on the docket sans a pleading and will be dismissed only in the event the plaintiff fails to amend or file a new complaint as he is by statute permitted to do.” Teague v. Oil Co., supra.

Judge Gambill’s order dismissing the amended complaint (filed without leave) did not dismiss the action but merely left it still, pending without a pleading. The defendant has the right to move that the •action foe dismissed for failure to comply with the statutory l-equirement. The order dismissing the amended complaint is

Affirmed.

Cite This Page — Counsel Stack

Bluebook (online)

107 S.E.2d 918, 250 N.C. 95, 1959 N.C. LEXIS 431, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dudley-ex-rel-dudley-v-dudley-nc-1959.

Opinion

Related

Cite This Page — Counsel Stack