Conant v. . Barnard

Avery, J. The complaint states facts sufficient to constitute a cause of action as to T. I. Van Gilder. Counsel for all parties represented in this Court concede that this is true. When the defendants united in a demurrer, on the ground that the complaint did not state facts sufficient to constitute a cause of action, they all placed themselves in the same boat, and must sink or swim together. The current of authority is in favor of this just and salutary rule of plead *319 ing, where the new system has been adopted. “ A demurrer by two or more, if there is a cause of action against one of them, will be overruled.” Bliss on Code PL, sec. 414 and note. This view is supported by other authorities. Tilling-hast & Sherman’s Pr., vol. 2, p. 127; McGenegland, v. Cotten, 32 Wis., 614; Shore v. Taylor, 46 Ind., 343; Whitaker’s Pr., vol. 2, p. 169; People v. The Mayor, 28 Barb., 240 ; Goncelier v. Foret, 4 Minn., 1; Christian v. Crocker, 25 Ark., 327; Peabody v. Insurance Co., 20 Barb., 339. Pomeroy, in his work on Remedies and Remedial Rights, distinctly states the rule that, “ where a demurrer is filed to several causes of action, or to more than one defence, on the ground that no cause of action or no defence is stated, if there is one good cause of action in the one case, or one sufficient defence in the other, the demurrer must be overruled.” The author adds, in that connection, “the same nile also applies to a demurrer for want of sufficient facts by two or more defendants jointly; it will be overruled as to all who unite in it, if the complaint or petition states a good cause of action against even one of them.” Section 577. The author adds that a different rule has prevailed in some States, but cites only a case from Nevada sustaining the view that the demurrer may,in such cases, be sustained as to some and overruled as to others of the parties uniting in it. This rule seems to have prevailed in courts of equity under the former practice. The defence that a bill did not state facts sufficient to constitute a cause of action was set up in a court of equity by a demurrer for want of equity to the whole bill. Under the practice that prevailed in the courts of equity in this State, where a defendant filed a demurrer to the whole bill, and the bill showed the plaintiff’s right to any relief, if true, the demurrer was overruled, “ for,” said the Court, “ it cannot be held bad in part and good in part.” Thompson v. Newlin, 3 Ired. Eq., 338. In *320 Barnawell and wife v. Patrick Threadgill et al., 5 Ired. Eq., 86, the suit was brought against six defendants, all of whom joined in the demurrer. Chief Justice RuffiN, for the Court, sa\s: “ We say the demurrer must be overruled at all events, because enough appears to entitle the plaintiff, if true, to a decree as to'the several negroes conveyed or sold to Thomas and Gideon B. Threadgill; and' therefore, this joint demurrer of the defendants to the whole bill (except the formal charge of combination) will not lie. For it is the general rule, that a demurrer must be good throughout, and that if it cover too much it must be overruled in toto.” The demurrer on the ground that a complaint does not constitute facts sufficient to constitute a cause of action “ is a substitute for the old general demurrer, and is still generally called a general demurrer.” Bliss on Code PI., sec. 413. The general rule seems to be that The Cbde practice rejects pleadings at law, and adopts those in equity by demurrer and answer. Ransom v. McCless, 64 N. C., 17. But the practice is of course modified by express provisions of The Code, not declaratory of any rule formally followed in either Court. In Cowand v. Meyers, 99 N. C., 198, this Court reiterates the principle that, if there is only one cause of action stated in the complaint, “ a demurrer must be to it as a unity or it will be disregarded.” This construction of The Code (§ 246) proceeds upon the same principle on which it has been held, in affirmance of the old practice, that one who demurs on the ground that the complaint does not state facts sufficient to constitute a cause of action, must fail, if it appear either that the cause of action is sufficient as to one of many defendants, joining in the demurrer, or tlrat one of several causes of actions, embodied in the complaint, is sufficient as to one or more of those joining in the demurrer. The same defendants may demur, on this ground, to one and answer as to another of two or more causes of action in one complaint, or as to a single cause of .action some defendants may *321 answer and some may demur, and the issues of law will, in either Court, be so raised as to require the Court to pass upon them. The plaintiff cannot recover a sum in excess of that demanded in the complaint without amendment. Apart from this restriction, any relief may be granted consistent with the case made by the complaint and embraced within the issue. Jones v. Mial, 82 N. C., 252. As the complaint, uncontradicted, would entitle the plaintiff to judgment against Van Gilder, we deem it unnecessary to decide the points discussed in the briefs of counsel, and it would not be proper to do so after cutting short the discussion, by a suggestion that the cause, as now constituted in this Court, must depend upon the single question, whether the mom-plaint, if admitted by Van Gilder, would entitle the plaintiff to judgment against him. There is no error. The judgment is affirmed. No error. Affirmed.