Tucker v. . Baker

86 N.C. 1

• Court: Supreme Court of North Carolina
• Decided: February 5, 1882
• Status: Published

Opinion

Ashe, J.

In this court the counsel for defendant moved that the action be dismissed for the reason, that the complaint does not state facts sufficient to constitute a cause of action, and we are of the opinion the objection is well founded.

The Code of Civil Procedure provides (section 95) that the defendant-may demur to the complaint when it shall appear upon the face thereof, either,

1. That the court has no jurisdiction of the person of the defendant or the subject of the action, or,

2. That the plaintiff has no legal capacity to sue, or

3. That there is another action pending between the same parties for the same cause of action, or

4. That there is a defect of parties, plaintiff or defendant, or

5. That several causes of action have been improperly united, or

6. That the complaint does not state facts sufficient to constitute a cause of action.

By section 98: That when any of the matters enumerated in section 95 do not appear upon the face of the complaint, the objection may be taken by answer.

And by section 99; If no objection be taken either by demurrer or answer, the defendant shall be deemed to have waived the same, excepting only the objection to the jurisdiction of the court, and the objection that the complaint does not state fads sufficient to constitute a cause of action.

Thus it would seem that the two last objections may be taken either by demurrer or on motion ore tenus. Such is the construction which has been given to these sections by this court. In Pescud v. Hawkins, 71 N. C., 299, Mr. Justice Bynum, speaking for the court, said: “ By the latter system of pleading (O. C. P.) the objection to the jurisdiction can now be taken only by answer or demurrer, the demurrer being either written or ore tenusand in McDougald v. Graham, 75 N. C, 310, it is held that “ whenever it shall appear to the court that a cause of action is not stated in the complaint, the action should be dismissed.”

In the case before us the complaint does not allege that the plaintiff or his intestate had any interest in the note' sued on, either, legal or equitable, nor does it state to whom the note is due, except that it was executed to H. Harris, but fails to connect himself or his intestate with the title of Harris. There is nothing stated in the complaint to show that the plaintiff has the right to recover upon the said note. The action must therefore be dismissed.

Per Curiam, Dismissed.