Frisby v. Town of Marshall

26 S.E. 251, 119 N.C. 570

• Court: Supreme Court of North Carolina
• Decided: September 5, 1896
• Status: Published

Opinion

Eueches, J.:

This case comes to us on plaintiff’s appeal, and was submitted upon the record without brief or argument. We find upon examining the record that when the case was called for trial the defendant demurred ore tenus to the plaintiff’s complaint, and upon an intimation from the court sustaining tbe demurrer the plaintiff submitted to a judgment of non-suit and appealed.

This seems to us to be a new practice and a new way of getting the opinion of the court reviewed. The usual practice is, a judgment sustaining or overruling the demurrer, and an appeal from that judgment if it sustained the demurrer. But talcing into consideration the whole record and the case on appeal, we suppose we should treat the case as if this course had been pursued. And we find fiom the ease that but one question is presented for our consideration, and that is “ that the plaintiff’s complaint is not verified, and that it does not allege that plaintiff presented her claim to the lawful municipal authorities to be audited and allowed, and that they had neglected to act upon it or had disallowed it,” and that the demurrer was sustained upon this ground. This ruling of the court was erroneous. Shields v. Town of Durham, 118 N. C., 450; Sheldon v. Asheville, at this Term. But we think it proper to say that both these cases (of Shields- and Sheldon, supra) have been decided since this case was decided by the court below. There is error and a new trial is awarded.

New Trial.