Oldham Ex Rel. Reynolds v. Ross

200 S.E. 393, 214 N.C. 696, 1939 N.C. LEXIS 417

Opinion

Per Curiam.

It is not specifically alleged in the complaint that the alleged agreement made by defendants’ intestate was or was not in writing and that the complaint does not sufficiently state a cause of action is not challenged by demurrer, the accepted method of raising this issue of law. C. S., 511. A motion for judgment on the pleadings is one ordinarily interposed by the litigant seeking affirmative relief. When so interposed it admits the facts alleged in defense and challenges the sufficiency of such facts to constitute a defense. Barnes v. Trust Co., 194 N. C., 371, 139 S. E., 689; Pridgen v. Pridgen, 190 N. C., 102, 129 S. E., 419; Churchwell v. Trust Co., 181 N. C., 21, 105 S. E., 889. Judgment cannot be rendered upon the pleadings against the party seeking affirmative relief when the allegations upon which the prayer for relief is based are denied. Every fact necessary to be established as a basis for the judgment asked must be admitted either by a failure to deny specific allegations or by specific admissions of the facts. Here the defendants specifically denied both the contract and the rendition of services. See Alston v. Hill, 165 N. C., 255, 81 S. E., 291; Dix-Downing v. White, 206 N. C., 567.

The judgment below is

Reversed.