Sullivan v. Johnson

Supreme Court of North Carolina

Sullivan v. Johnson

150 S.E.2d 777, 268 N.C. 443, 1966 N.C. LEXIS 1224

DecidedNovember 2, 1966

StatusPublished

This text of 150 S.E.2d 777 (Sullivan v. Johnson) 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

Sullivan v. Johnson, 150 S.E.2d 777, 268 N.C. 443, 1966 N.C. LEXIS 1224 (N.C. 1966).

Pincite

Opinion

Per Curiam.

Plaintiff’s issuance of summons, affidavit and motion to adversely examine the defendant indicate that her cause of action, if any, related to the validity of the second deed of trust. From the record it appears that there was before the judge a motion to vacate the order for adverse examination and a petition under G.S. 45-21.31 to determine rights to funds held by the Clerk resulting from the sale under the first mortgage. The record does not disclose a motion to dismiss the action. The plaintiff had not filed her complaint and the plaintiff’s principal action was not before the court. Ordinarily a cause of action should not be dismissed before it is stated. When the complaint is filed, its sufficiency may then be tested. The dismissal of the action by the court below was premature and the judgment is .

Reversed!

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Per Curiam.

Plaintiff’s issuance of summons, affidavit and motion to adversely examine the defendant indicate that her cause of action, if any, related to the validity of the second deed of trust. From the record it appears that there was before the judge a motion to vacate the order for adverse examination and a petition under G.S. 45-21.31 to determine rights to funds held by the Clerk resulting from the sale under the first mortgage. The record does not disclose a motion to dismiss the action. The plaintiff had not filed her complaint and the plaintiff’s principal action was not before the court. Ordinarily a cause of action should not be dismissed before it is stated. When the complaint is filed, its sufficiency may then be tested. The dismissal of the action by the court below was premature and the judgment is .

Reversed!

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Bluebook (online)

150 S.E.2d 777, 268 N.C. 443, 1966 N.C. LEXIS 1224, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sullivan-v-johnson-nc-1966.