Opinion
(June Term, 1877.)
Pleading — Demurrer — Answer.
If the cause assigned for demurrer does not appear in the complaint, it can be taken advantage of only by answer.
APPEAL at Spring Term, 1877, of CHOWAN, from Cannon, J.
(66) Mullen Moore for plaintiff.
Gilliam Pruden for defendants.
The defendants demurrer to the complaint. His Honor overruled the demurrer and gave judgment for plaintiff, and the defendants appealed.
The causes assigned for demurrer do not appear in the complaint, and therefore can be taken advantage of only by answer.
The case will be remanded, to the end that the defendants may answer, and on failure to do which there should be judgment for plaintiff.
We call attention to the fact that C. C. P., sec. 91, requires that the "complaint" should contain "a plain and concise statement of the facts constituting the cause of action." It may be that the complaint in this case is at fault in that particular. If so, it may be amended by leave.
There was no error in overruling the demurrer, but there was error in giving judgment for the demand without allowing an answer. Bat. Rev., ch. 17, sec. 131.
Case remanded. Each party will pay his own costs in this Court.
PER CURIAM. Remanded.
Cited: S. c., 79 N.C. 535; Womble v. Leach, 83 N.C. 86; Dills v. Hampton, 92 N.C. 569; Kiff v. Weaver, 94 N.C. 278; Hornthal v. Burwell, 109 N.C. 18; Burton v. Mfg. Co., 132 N.C. 19; Allred v. Smith, 135 N.C. 457.
(67)