Rayburn v. . Rayburn

DeviN, J. Tbe able judge who beard this cause below properly overruled tbe demurrer, but was in error in rendering judgment for tbe plaintiff without allowing defendant tbe statutory period within wbicb to answer. Tbe applicable procedural statute, G. S., 515, contains this provision : “If tbe demurrer is overruled, tbe answer shall be filed within ten days *515 after receipt of tbe judgment, if there is no appeal, or within ten days after receipt of certificate of the Supreme Court, if there is an appeal.” Law v. Cleveland, 213 N. C., 289, 195 S. E., 809; Cody v. Hovey, 217 N. C., 407; Adams v. Cleve, ante, 302. The prescribed period for answering not having expired, judgment for want of answer was improperly entered and should be stricken out, and an opportunity afforded defendant to answer, if he so desires. The cause is remanded for such further proceeding in accord with the statute as the parties may elect. Error and remanded.