Ellis v. . Perley ( 1931 )

ClaRKsoN, J.

"We think the court below was correct in overruling the demurrer. In Brick Co. v. Gentry, 191 N. C., at p. 642, speaking to the subject: “A demurrer can be sustained, and it is only appropriate, when the defect or objection appears on the face of the pleadings, as it is not the province of a demurrer to state objections not apparent on the face of the pleading to which it is directed. A ‘speaking demurrer/ as styled by the books, is one which invokes the aid of a fact, not appearing on the face of the complaint, in order to sustain itself, and is condemned, both by the common law and the Code system of pleading. Besseliew v. Brown, 177 N. C., 65; VonGlahn v. DeRossett, 76 N. C., 292.” Justice v. Sherard, 197 N. C., 237; Buchanan v. Feldspar Milling Co., ante, at p. 53.

It is also said that “A demurrer goes to the heart of a pleading and challenges the right of the pleader to maintain his position in any view of the matter, admitting for the purpose the truth of the allegations of fact contained therein.” Meyer v. Fenner, 196 N. C., at p. 477; Winston-Salem v. Ashby, 194 N. C., at p. 390; Efird v. Winston-Salem, 199 N. C., at p. 35.

In Enloe v. Ragle, 195 N. C., at p. 38, speaking-to the subject: “A general demurrer will not be allowed. A demurrer must distinctly specify the grounds of objection or it may be disregarded. It may be taken to the whole complaint or to any of the alleged causes of action stated therein. C. S., 512. A demurrer to the jurisdiction or that the complaint does not state facts sufficient to constitute a cause of action, will be treated as a motion to dismiss, and can be interposed ore temas at any time, even in the Supreme Court. The Supreme Court may raise the question ex mero motu. Seawell v. Cole, 194 N. C., p. 546.” “Speaking demurrer” is bad. Reel v. Boyd, 195 N. C., 273.

For the reasons given, the judgment of the court below is

Affirmed.

CoNNOR, J., concurs in result.