City of Goldsboro v. W. P. Rose Builders Supply Co. , 200 N.C. 405 ( 1931 )

The defendants appeal from the overruling of their demurrer and from the judgment continuing the restraining order to the final hearing.

The defendants waived their right to demur on the ground of a misjoinder of parties and causes of action by answering to the merits. C. S., 518;Moseley v. Johnson, 144 N.C. 257, 56 S.E. 922; Ransom v. McClees,64 N.C. 17. "A defendant cannot demur and answer at the same time. By answering to the merits all defects are waived, except an objection to the jurisdiction of the court or to the defectiveness of the cause of action, which objection can be made at any stage of the case." Walker, J., inRosenbacher v. Martin, 170 N.C. 236, 86 S.E. 785.

The demurrer was properly overruled on the second and third grounds, to wit, that the complaint fails to show any authority on the part of the individual plaintiffs or the city of Goldsboro to maintain the instant action. Merrimon v. Paving Co., 142 N.C. 539, 55 S.E. 366. The individual plaintiffs allege threatened injury to their property of an irreparable nature (Wentz v. Land Co., 193 N.C. 32, 135 S.E. 480), and the city of Goldsboro is expressly authorized to maintain an action, such as the present, by section 8, chapter 250, Public Laws 1923. Elizabeth Cityv. Aydlett, ante, 58.

The remaining exceptions require no special mention. Let the costs be divided.

Affirmed.