Hurst v. . Addington

Ashe, J. We concur with His Honor in the court below, that the demurrer was frivolous and should have been stricken out or disregarded, and judgment rendered for the plaintiff. In the case of Swepson v. Harvey, 66 N. C., 436, it was held that if the defences set up in the answer are worthy of con *145 •sideration, they cannot be declared frivolous-; and in such ‘-case the- plaintiff should either reply or demur, and -if the demurrer be'overruled, it became the duty of the .¡judge to -allow him to plead over, unless it is -manifest that such demurrer is frivolous -and does not raise any question of law-worthy of serious -consideration, -and is interposed merely for delay-. And again,-a frivolous answer has been defined to be one which is manifestly impertinent, as-alleging -matters which -if true -do not affect the right to -recover. Brogden v. Henry, 83 N. C., 274; Dail v. Harper, Ib., 4. Applying the principles enunciated in .these -cases to our •case, we must'concur with the .judge below that the demurrer is frivolous. We cannot see how it affects the recovery of the plaintiff, and -it does seem to have been filed -merely -for the purpose of delay. The complaint sufficiently shows that the will was .proved and the executor qualified before •the filing o-f t-h-e complaint; these facts a-re stated in the complaint, and it is perfectly immaterial whether the .probate was had -before or after t-he issuing of the summons, •so it w-as done before the -filing o-f the complaint, for it is common learning that an executor may commence an action before he has proved the will, but cannot declare before probate. Toller on Executors, 46; 1 Williams on Executors, 260. That.ground of demurrer then cannot be sustained. And the other ground is equally without foundation. The court of probate of Buncombe county has jurisdiction ■of the probate of wills. It has taken jurisdiction in this case -and has adjudicated upon the -matter. Its action must be presumed to be correct, and its judgment like -that-of any other court of competent jurisdiction must stand until set aside or shown to be void. There is no error. The judgment of the court below is affirmed. No error. -Affirmed.