Southerland v. . Harrell

CONNOR, J. The pleas to the jurisdiction of the court filed by the defendants in this action are, in effect, demurrers to the complaint on the ground that the Superior Court of Duplin County, in which the action was begun, has no jurisdiction of the subject-matter of the action. C. S., 511(1). They present, therefore, only the question as to whether upon the facts appearing on the face of the complaint, the court has jurisdiction of the cause of action alleged therein. Roebuck v. Short, 196 N. C., 61, 144 S. E., 515. No facts alleged in the pleas can be considered in determining the correct answer to the question of law presented by the defendants. In Latham v. Highway Commission, 185 N. C., 134, 116 S. E., 85, it is said: “It is not the office or function of a demurrer to allege facts, and upon that allegation to challenge the adversary's legal right, or the validity of his claim, which is called a 'speaking demurrer/ but its sole purpose is to take the facts as they are stated in the opposite pleading, or to admit the truth of its allegations, and then to question their sufficiency in law to authorize the granting of the relief demanded, if directed against a complaint, or the soundness of the defense, if against an answer.” The judgment dismissing the action is reversed on the authority of Hanks v. Utilities Co., ante, 155, 167 S. E., 560. In that case the judgment overruling the demurrer was affirmed. It is said in the opinion that “it does not appear upon the face of the complaint that the 'Workmen's Compensation Act applies to the defendant. C. S., 8081 (u) provides in subsection (b) that the Workmen’s Compensation Act does not apply to casual employees, 'nor to any person, firm, or private corporation that has regularly in service less than five employees in the said business within this State.’ Aycock v. Cooper, 202 N. C., 500, 163 S. E., 569. The face of the complaint does not disclose that the defendant employs more than five men. A demurrer cannot be sustained unless the vitiating defect appears upon the face of the pleadings assailed. Justice v. Sherard, 197 N. C., 237, 148 S. E., 241.” Reversed.