Toomes v. Toomes

119 S.E.2d 442, 254 N.C. 624, 1961 N.C. LEXIS 485

• Court: Supreme Court of North Carolina
• Decided: May 3, 1961
• Status: Published

Opinion

Per Cuhiam.

The office of demurrer is to test the sufficiency of a pleading, and for that purpose it admits the truth of the facts contained in the pleading. Buchanan v. Smawley, 246 N.C. 592, 595, 99 S.E. 2d 787. Applying this rule, the original parties admit, for the purpose of the demurrer, the following facts alleged: Intervenors were not served with summons in the former proceeding; the 1937 sale was not properly confirmed and approved; and intervenors have not been divested of title to their one-tenth interest in the land or its proceeds. Whether these allegations can be sustained by proof is a different matter. They are sufficient to withstand the demurrer.

The ruling of the court below was undoubtedly based on his examination and consideration of the judgment in the former proceeding. While this judgment and the judgment roll in the former proceeding were referred to and attacked by intervenors’ pleading, they were not attached to or incorporated in the pleading. “A demurrer lies only when the defect asserted as the ground of demurrer is apparent upon the face of the pleading attacked. (Citing authorities) A demurrer which requires reference to facts not appearing on the face of the pleading attacked is a ‘speaking demurrer,’ and is bad.” Construction Co. v. Electrical Workers Union, 246 N.C. 481, 488-9, 98 S.E. 2d 852. The instant case illustrates the soundness of the rule that a “speaking demurrer” is bad. If the matter dehors the pleading conflicts with the facts alleged, the court has no choice but to resolve the matter on the basis of the pleading. Extraneous matters may be considered only when the cause is heard oii the merits.

Demurrants insist that the allegations attacking the 1937 judgment and sale may only be asserted by motion in the former proceeding, and must be disregarded in the pleading to the proceeding at bar. Even so, if all reference to the former proceeding be stricken from intervenors’ answer, the pleading still alleges ownership of a one-tenth interest in the land and that it has never been divested. This, we think, is sufficient to withstand demurrer. Assuming, but not deciding, that all or a portion of intervenors’ allegations with reference to the former proceeding may only be made by motion in that cause, the court may, in its discretion, treat the answer in the present proceeding as a motion in the prior cause and thereby avoid further delay. Craddock v. Brinkley, 177 N.C. 125, 127, 98 S.E. 280.

We express no opinion on the merits.

The judgment below sustaining the demurrer and dismissing in-tervenors’ claim of interest in the proceeds of the sale of the land is

Reversed.