Allen v. Carolina Central Railway Co.

*550 Eaiecloth, C. J.: This case stands upon complaint and demurrer, and the ground of defence is “that the negligence alleged is not sufficiently and legally set out.” . The purpose of The Code is that controversies shall be tried on .their true merits, and to this end it prescribes the mode, order and forms of pleading, with provisions for perfecting the pleadings in apt time, by striking out or amending the same. When there is a defective cause of action, although in due form, the plaintiff cannot recover unless the court in its discretion, on reasonable terms, allows a,n amendment. When a good cause of action is set out, but defective in form, the court may require the pleadings to be made definite and certain by amendment. The Gode, Sections 259 and 261. Eor this purpose, however, the objector must move in apt time. It is too late after demurrer or answer. Stokes v. Taylor, 104 N. C., 394. This motion is addressed to the discretion of the court. Conley v. Railroad., 109 N. C., 692; Smith v. Summerfield, 108 N. C., 284. The court may ex mero motu direct the pleadings to be reformed. Buie v. Brown, 104 N. C., 335. See generally Clark’s Code, p. 207, Section 261. The demurrer to the sufficiency of the cause stated brings to this court a question of form or uncertainty in the pleadings, and not the merits of the action, and thus costs and delay are incurred, which might have been avoided by a proper motion below, as we are to assume that the judge would have granted the proper motion, certainly until it appears otherwise. Without commending the form in which the plaintiff has stated his case in the complaint, we think the defendant’s remedy was by motion and not by demurrer. The case is remanded in order that the parties may.proceed as they *551 are advised. ¥e must sustain the judgment below, but we do so without prejudice to the'rights of either party to plead de novo. Remanded.