Schnibben v. . Ballard Ballard Co.

Supreme Court of North Carolina

Schnibben v. . Ballard Ballard Co.

185 S.E. 646, 210 N.C. 193, 1936 N.C. LEXIS 51

CourtSupreme Court of North Carolina

DecidedMay 20, 1936

StatusPublished

Cited by2 cases

This text of 185 S.E. 646 (Schnibben v. . Ballard Ballard Co.) 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

Schnibben v. . Ballard Ballard Co., 185 S.E. 646, 210 N.C. 193, 1936 N.C. LEXIS 51 (N.C. 1936).

Pincite

Opinion

Per Curiam.

The defendants filed answer to the complaint. By so doing they waived any right to demur to the complaint except upon the first and last grounds stated in C. S., 511, namely, that “the court has no jurisdiction of the person of the defendant or of the subject of the action,” and “the complaint does not state facts sufficient to constitute a cause of action.” Ransom v. McClees, 64 N. C., 17; Finch v. Baskerville, 85 N. C., 205; Goldsboro v. Supply Co., 200 N. C., 405, and cases there cited; McIntosh’s N. C. Prac. and Proc., pp. 457, 458. The rather elaborate demurrer filed is not based upon either of these grounds, and could not have been sustained had it been so based. True, the demurrer filed was to the amended complaint, but, in the language of the appel- *194 lant’s brief, page 3, “the amended complaint is substantially the same as the original complaint.” Certainly, the amendment adds nothing to the original complaint and takes nothing from it which nullifies the waiver of the right to demur caused by the filing of an answer.

Affirmed.

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Per Curiam.

The defendants filed answer to the complaint. By so doing they waived any right to demur to the complaint except upon the first and last grounds stated in C. S., 511, namely, that “the court has no jurisdiction of the person of the defendant or of the subject of the action,” and “the complaint does not state facts sufficient to constitute a cause of action.” Ransom v. McClees, 64 N. C., 17; Finch v. Baskerville, 85 N. C., 205; Goldsboro v. Supply Co., 200 N. C., 405, and cases there cited; McIntosh’s N. C. Prac. and Proc., pp. 457, 458. The rather elaborate demurrer filed is not based upon either of these grounds, and could not have been sustained had it been so based. True, the demurrer filed was to the amended complaint, but, in the language of the appel- *194 lant’s brief, page 3, “the amended complaint is substantially the same as the original complaint.” Certainly, the amendment adds nothing to the original complaint and takes nothing from it which nullifies the waiver of the right to demur caused by the filing of an answer.

Affirmed.

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Bluebook (online)

185 S.E. 646, 210 N.C. 193, 1936 N.C. LEXIS 51, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schnibben-v-ballard-ballard-co-nc-1936.

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