Rhyne v. Clark

121 S.E.2d 606, 255 N.C. 418, 1961 N.C. LEXIS 606

Opinion

Per Cukxam.

“A demurrer lies only when the defect asserted as the ground of demurrer is apparent upon the face of the pleading attacked.” Construction Co. v. Electrical Workers Union, 246 N.C. 481, 488, 98 S.E. 2d 852; G.S. 1-127; G.S. 1-133. Facts alleged in defendants’ answer may not be considered in passing on the legal sufficiency of the complaint.

Here, the allegations of the complaint do not disclose “a defect of parties plaintiff or defendant.” G.S. 1-127(4). Nor do they disclose “that a necessary party ha(s) not been joined'as plaintiff or defendant.” Hence, the judgment sustaining defendants’ demurrer ore tenus and dismissing the action was erroneously entered and is reversed.

Reversed.