Tallassee Power Co. v. Peacock

CoNNOR, J. Tbis action was begun in the Superior Court of Davidson County on 8 December, 1927. On 9 December, 1927, plaintiff filed its duly verified complaint. On 4 January, 1928, defendants demurred in writing to the complaint on the ground that the facts stated therein are not sufficient to constitute a cause of action. Tbis demurrer was overruled by Stack, J., at May Term, 1928, and defendants were allowed sixty days within which to answer the complaint. Defendants excepted to the order overruling the demurrer and gave notice of their appeal to the Supreme Court. Tbe appeal was not perfected. Tbe order of Judge Stack has not been reversed on appeal by this Court and is, therefore, conclusive in the Superior Court of the question presented by the demurrer, in writing, to wit: Whether the facts stated in the complaint are sufficient to constitute a cause of action upon which plaintiff is entitled to the relief prayed for. C. S., 601. On 9 June, 1928, defendants filed an answer to the complaint in which they denied the material allegations thereof. On 18 March, 1929, by leave of court obtained at February Term, 1929, defendants filed an amended answer, in which after again denying the material allegations of the complaint, they alleged matters in further defense of plaintiff’s recovery in this action. Plaintiff filed-a reply to the amended answer, in which it denied the allegations of the answer. Tbe action came on for trial on the issues raised by the pleadings at July Term, 1929, before Moore, J., and a jury. After the jury bad been empaneled and after the pleadings bad been read, defendants demurred *737 ore tenus to tbe complaint, and moved tbat, the action be dismissed, on the ground that the facts stated in the complaint are not sufficient to constitute a cause of action. The demurrer ore tenus was sustained and the motion that the action be dismissed was allowed. Plaintiff excepted to the judgment, sustaining the demurrer ore tenus, and dismissing the action, and appealed to this Court, contending that there was error in the judgment. Ordinarily, an objection that the complaint filed in a civil action does not state a cause of action may be taken advantage of at any time. The objection may be made in writing before answer filed, or it may be made orally after answer filed. The right to demur to the complaint on that ground, or on the ground that it appears upon the face of the complaint that the court is without jurisdiction of the cause of action alleged in the complaint, is not waived by the filing of an answer. C. S., 518. In either case, notwithstanding answer filed, the defendant may demur ore tenus in the Superior or in the Supreme Court. The Supreme Court of its own motion may take notice of the insufficiency of the complaint, or of the lack of jurisdiction, and dismiss the action upon either ground. Lassiter v. Adams, 196 N. C., 711, 146 S. E., 808; McDonald v. MacArthur, 154 N. C., 122, 69 S. E., 684; Garrison v. Williams, 150 N. C., 674, 64 S. E., 783. Where, however, as in the instant case, before answer filed defendant demurred in writing to the complaint on the ground that the facts stated therein are not sufficient to constitute a cause of action and the demurrer on .this ground is heard by a judge of the Superior Court, and not sustained by him, and thereafter the defendant filed an answer to the complaint, the defendant may not present the same question for decision to another judge of the Superior Court, presiding at a subsequent term of the court, by a demurrer ore tenus. The order of the judge overruling the written demurrer is appealable. Shelby v. R. R., 147 N. C., 537, 61 S. E., 377. The appeal therefrom must, however, be taken to the Supreme Court which alone has jurisdiction to review the decision of the judge of the Superior Court. Dockery v. Fairbanks, 172 N. C., 529, 90 S. E., 501. It is well settled that “no appeal lies from one Superior Court judge to another.” May v. Lumber Co., 119 N. C., 96, 25 S. E., 721. It was error for Judge Moore, presiding at a subsequent term of the court to hear and determine defendants’ demurrer ore tenus, where the same question thereby presented had been decided by Judge Stack at a former term of the court. Defendants’ demurrer ore tenus in this case was in effect an appeal from Judge Stack to Judge Moore, both of whom are judges of the Superior Court. The latter was without power to review the decision of the former. The power to review the decision of a judge of the Superior Court, upon a matter of law or legal *738 inference, on appeal, is vested by the Constitution of this State exclusively in the Supreme Court. Const, of N. C., Art. IV, sec. 8. Upon consideration of the allegations of the complaint, we are of opinion that the facts alleged therein are sufficient to constitute a cause of action, and that in any event it was error to sustain the demurrer ore tenus and to dismiss the action. The judgment is Reversed.