Paul v. Dixon

107 S.E.2d 141, 249 N.C. 621, 1959 N.C. LEXIS 399

• Court: Supreme Court of North Carolina
• Decided: February 25, 1959
• Docket: 91
• Status: Published

Opinion

WiNBORNE, C. J.

Decisions of this Court hold that where all the defendants join in a demurrer to the complaint upon the ground that it does not set forth a good cause of action, the demurrer will be overruled if the complaint sets forth a good cause of action as to any one of the defendants. Conant v. Barnard, 103 N.C. 315, 9 S.E. 575; Loughran v. Giles, 110 N.C. 423, 14 S.E. 966; Blackmore v. Winders, 144 N.C. 212, 56 S.E. 874; Caho v. N & S Ry. Co., 147 N.C. 20, 60 S.E. 640; Hipp v. Farrell, 169 N.C. 551, 86 S.E. 570; Winders v. Southerland, 174 N.C. 235, 93 S.E. 726.

See also McIntosh’s N.C. P & P, Sec. 449, page 463, and McIntosh’s N.C. P & P 'Second Edition, Sec. 1195 on page 655.

In Conant v. Barnard, supra, Avery, J., writing for the Court, it is declared that “When the defendants united in a demurrer, on the ground that the complaint did not state facts sufficient to constitute a cause of .action they all .placed themselves in the same boat and must sink or swim together. The current of authority is in favor of this just and salutary rule of pleading, where the new system has been adopted. ‘A' demurrer by two or more, if there is a cause of action against any one of them will be overruled,’ ” citing authorities.

And in the Caho case, supra, the Court in opinion by Connor, J., had this to say: “The defendants having joined in the demurrer, if the complaint states a cause of action against either of them, it must be overruled * * * If, therefore, a cause of action is stated against the Pamlico, Oriental and Western RR Company, we may not inquire whether any is stated against its co-defendants who joined in the demurrer, but must adjudge that they answer over.”

Moreover in Hipp v. Farrell, supra, Hoke, J., writing for the Court,' declared: “Again, it is held with us that where two or more are sued as jointly responsible for a wrong, a joint demurrer filed will be held bad, if a cause of action is stated against either of the defendants,” citing the Caho case, supra. To same effect is opinion by Clark, C. J., in Winders v. Southerland, supra.

In the light of the allegations in the complaint in present case, it appears clear that plaintiff alleges a cause of action against defendant, Rhoda Scott Dixon. Therefore, applying the .above holding of this. Court, “We may not inquire,” as stated in the Caho case, supra, “whether any is stated against its co-defendants who joined in the demurrer, but must adjudge that they answer over.”

Indeed, in so holding there is no conflict with the decision in Bailey v. McGill, 247 N.C. 286, 100 S.E. 2d 860. There the three defendants filed separate demurrers.

Hence in sustaining the demurrer as to defendants Dallas Crawford Dixon and Shirley Elva Dixon there is error and, in this respect, the judgment below is

Reversed.

Mooee, J., took no part in consideration or decision of this appeal.