Morgan v. High Penn Oil Co.

EeviN, J. This question arises at the threshold of the appeal: Is an order overruling a demurrer ore ienus appealable ? The answer is “No.” Hood, Comr. of Banks v. Motor Co., 209 N.C. 303, 183 S.E. 529; Griffin v. Bank, 205 N.C. 253, 171 S.E. 71; Mountain Park Institute v. Lovill, 198 N.C. 642, 153 S.E. 114; Chambers v. R. R., 172 N.C. 555, 90 S.E. 590; Shelby v. Railway Co., 147 N.C. 537, 61 S.E. 377; Hall v. Railroad, 146 N.C. 345, 59 S.E. 879; Burrell v. Hughes, 116 N.C. 430, 21 S.E. 971; Joyner v. Roberts, 112 N.C. 111, 16 S.E. 917; Sprague v. Bond, 111 N.C. 425, 16 S.E. 412; McIntosh: North Carolina Practice and Procedure in Civil Cases, section 676. [617] Tbe reasons for tbe rule tbat an appeal does not lie from an order overruling a demurrer ore tenus were tbus stated in Joyner v. Roberts, supra: “It is contended, however, tbat tbis is, in effect, a demurrer ore tenus, and tbat, therefore, an appeal lies. From tbe overruling of a formal demurrer an appeal does lie. But there is tbis protection against abuse, tbat if tbe demurrer is frivolous, judgment is at once granted tbe plaintiff. Tbe Code, section 388. (Now G.S. 1-219.) But there is no such remedy on overruling tbis motion. ... If an appeal lay in such cases, every defendant in every case could procure six or twelve months’ delay by simply objecting to tbe jurisdiction or to tbe sufficiency of tbe complaint, no matter bow plain tbe case or bow utterly unfounded tbe grounds of tbe objection, since, as has been already said, judgment cannot be entered as when a frivolous demurrer is filed. To rule tbat an appeal lay in such ease would be simply to establish a ‘stay-law.’ There is less excuse for an appeal in tbis particular respect, since tbe defendants cannot possibly be damaged by delaying tbe appeal till tbe final judgment, because, even though they should fail to note an exception, tbe objection to tbe jurisdiction and for failure of tbe complaint to state a cause of action can still be taken advantage of for tbe first time in tbis Court. Eule 27 of tbe Supreme Court. (Now Eule 21.) Those grounds of objection cannot be waived by proceeding to trial . . . Tbe hardship, if any, is on tbe other side, who may find (if be has not a cause of action' or tbe Court has not jurisdiction) tbat bis victory is barren, and tbat be has the costs to pay for bis bootless clamor. . . . There are some questions which, by tbe reiterated and uniform adjudications in regard to them, should be deemed settled. Tbis is one of them.” Appeal dismissed.