Elliott v. Goss

Supreme Court of North Carolina

Elliott v. Goss

119 S.E.2d 192, 254 N.C. 508, 1961 N.C. LEXIS 469

CourtSupreme Court of North Carolina

DecidedApril 19, 1961

Docket453

StatusPublished

Cited by4 cases

This text of 119 S.E.2d 192 (Elliott v. Goss) 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

Elliott v. Goss, 119 S.E.2d 192, 254 N.C. 508, 1961 N.C. LEXIS 469 (N.C. 1961).

Pincite

Opinion

PER Cueiam.

This case was here at a prior term. Elliott v. Goss, 250 N.C. 185, 108 S.E. 2d 475. The decision of this Court on the former appeal sustained a demurrer to the complaint but permitted plaintiffs to amend.

Plaintiffs filed an amended complaint. Defendants demurred on the ground that the amended complaint does not state a cause of action. The trial court overruled the demurrer. In this we find no error. The complaint states facts sufficient to constitute a cause of action in ejectment and to quiet title. Furthermore, the argument of defendants in support of demurrer has no validity unless matters dehors the complaint are considered. In reality defendants convert their pleading into a speaking demurrer. In this aspect, the demurrer may not be sustained in any event — a speaking demurrer may not be considered. Lamm v. Crumpler, 240 N.C. 35, 43, 81 S.E. 2d 138.

After this case had been argued here, counsel mailed a copy of the instrument defendants desire the Court to consider. It is not a part of the record and this Court will not go outside the record. Even so, we find nothing therein which would, if considered, change the results.

Defendants assign as error the admission in evidence of certain testimony and a purported deed. The evidence adduced at the trial, other than that referred to in the assignment of error, and the charge of the court are not a part of the record. It is therefore impossible for this Court to determine whether or not the particular evidence excepted to was prejudicial to defendants. Considering it out of context, it appears to have been properly admitted. The assignment of error is not sustained.

*510 The issues submitted to the jury are sufficient to determine the issues of fact raised by the pleadings.

The costs will be paid by defendants (other than R. S. Boger and wife).

In the trial of the case we find

No error.

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

PER Cueiam.

This case was here at a prior term. Elliott v. Goss, 250 N.C. 185, 108 S.E. 2d 475. The decision of this Court on the former appeal sustained a demurrer to the complaint but permitted plaintiffs to amend.

Plaintiffs filed an amended complaint. Defendants demurred on the ground that the amended complaint does not state a cause of action. The trial court overruled the demurrer. In this we find no error. The complaint states facts sufficient to constitute a cause of action in ejectment and to quiet title. Furthermore, the argument of defendants in support of demurrer has no validity unless matters dehors the complaint are considered. In reality defendants convert their pleading into a speaking demurrer. In this aspect, the demurrer may not be sustained in any event — a speaking demurrer may not be considered. Lamm v. Crumpler, 240 N.C. 35, 43, 81 S.E. 2d 138.

After this case had been argued here, counsel mailed a copy of the instrument defendants desire the Court to consider. It is not a part of the record and this Court will not go outside the record. Even so, we find nothing therein which would, if considered, change the results.

Defendants assign as error the admission in evidence of certain testimony and a purported deed. The evidence adduced at the trial, other than that referred to in the assignment of error, and the charge of the court are not a part of the record. It is therefore impossible for this Court to determine whether or not the particular evidence excepted to was prejudicial to defendants. Considering it out of context, it appears to have been properly admitted. The assignment of error is not sustained.

*510 The issues submitted to the jury are sufficient to determine the issues of fact raised by the pleadings.

The costs will be paid by defendants (other than R. S. Boger and wife).

In the trial of the case we find

No error.

Cite This Page — Counsel Stack

Bluebook (online)

119 S.E.2d 192, 254 N.C. 508, 1961 N.C. LEXIS 469, Counsel Stack Legal Research, https://law.counselstack.com/opinion/elliott-v-goss-nc-1961.

Opinion

Related

Cite This Page — Counsel Stack