Ladd v. . Ladd

Clark, J.: There was sufficient evidence to submit the ease to the jury (State v. Green, 117 N. C., 696; State v. Kiger, 115 N. C., 751), and for the error in sustaining the demurrer to evidence the plaintiff is entitled to a new trial. The defendant, however, moves in this Court to dismiss because the complaint does not state facts sufficient to constitute a cause." This is one of the two exceptions which can be taken in this Court, though not made below; the other being that the Court had no jurisdiction. Rule 27. Kidd v. Venable, 111 N. C., 535. It is often difficult to distinguish between a defective statement of a good cause of action which is cured b]r a failure to demur and the statement of a defective cause of action which is not, and to which an exception can be taken for the first time in this Court. Knowles v. Railroad, 102 N. C., 59; Mizzell v. Ruffin, 118 N. C., 69. But under the settled authorities, in an action for divorce it is not sufficient to allege, following the words of chapter 277, Laws of 1895, merely the abandonment by the wife, and her living separate and apart from her husband, and her still refusing to live with him, but “all the facts relied on as constituting *121 the cause of action are required to be set forth,” and “they are to be charged, as far as possible, specifically .and definitely.” McQueen x. McQueen, 82 N. C., 471, citing Whittington v. Whittington, 19 N. C., 64; Wood v. Wood, 27 N. C., 674; Foy x. Foy, 35 N. C., 90. “The complaint should contain a fair representation of any transaction relied on as the ground of the decree, since its defects are not aided by the verdict.” White x. White, 84 N. C., 340, citing McQueen’s case, supra; and both these cases have been cited and approved since. Jackson v. Jackson, 105 N. C., 433; O’Connor v. O’Connor, 109 N. C., 139. Among many prior cases of the same purport are Harrison v. Harrison, 29 N. C., 484; Everton v. Everton, 50 N. C., 202; Erwin v. Erwin, 57 N. C., 82; Joyner v. Joyner, 59 N. C., 322. If there was no jurisdiction in the Court in which an .action originated, it will be dismissed in this Court on motion ore ten us, or even ex mero'motu by the Court itself. But when the defect is that the complaint does not state a cause of action, if the defect is such that it cannot possibly be cured by additional averments, the action must, of course, be dismissed; but when the defects, though too serious to be •cured by a failure to demur, yet are not so radical that thejr cannot be cured by permitting additional averments, — the line between which, as above stated, is difficult to draw,— the Court will not dismiss, but will grant a new trial, that the plaintiff may ask leave to amend. This was the course pursued by this Court in both Jackson v. Jackson, and O’ Connor v. O’ Connor, supra. While this distinction has not always been noted, and cases in which the defect, though too serious to be cured by pleading over, was yet capable of being stated on a repleader, have been dismissed, the latter course was an oversight and should not be followed in that class of cases. As both parties are thus entitled to a new trial, each will pay his own costs in this Court. Code, Section 527. The defence set up in the answer .that the act of 1895 is invalid and unconstitutional is without merit. New trial.