State v. Standard Oil Co. of New Jersey

Stacy, C. J.

In the outset it should be observed that the judgment of Judge Sinclair, sustaining the demurrers to the original complaint on the ground that it did not state facts sufficient to constitute a cause of action, was not before Judge Cranmer for review. He could not question its correctness, but was bound by its terms. No appeal lies from one Superior Court judge to another.

S. v. Lea, 203 N. C., 316 , 366 S. E., 292 ;

Revis v. Ramsey, 202 N. C., 815 , 164 S. E., 358 . Nor is the judgment sustaining the demurrers before us for review. There was no appeal from said judgment.

Willoughby v. Stevens, 132 N. C., 254 , 43 S. E., 636 . The only question presently presented is the correctness of the ruling striking out the amendment.

In considering the motions to strike out the amendment, the judge was not only faced with the holding that the original complaint, which contains paragraph 22, did not state facts sufficient to constitute a cause of action, but was also under the necessity of observing the terms of the judgment allowing the plaintiff to amend.

Dockery v. Fairbanks, 172 N. C., 529 , 90 S. E., 501 . There, it was said an averment of a general conclusion would not suffice unless predicated upon allegation of some “specific fact or facts, which of themselves would constitute a monopoly *127 or tbe prevention of competition.” True, it is alleged in tbe amendment that tbe defendants acted in concert and in pursuance of agreements, combinations and understandings, with a common purpose to control and raise tbe prices of commodities sold by them, wbicb prevented competition, but it bad already been beld that tbe previous allegations of fact were not sufficient to support a similar conclusion.

His Honor concluded, therefore, as tbe original complaint did not state facts sufficient to constitute a cause of action, according to tbe prior ruling, wbicb was binding on bim, tbe only responsive amendment would be one stating sucb facts, or stating facts wbicb added to those in tbe original complaint would be sufficient to constitute a cause of action; and that since tbe amendment omitted to state tbe facts previously pointed out as essential, it was not responsive to tbe order allowing it. In this, we perceive no error. It is not open to tbe plaintiff to say tbe original complaint does state facts sufficient to constitute a cause of action, for tbe judgment sustaining tbe demurrers, unappealed from, forecloses this position.

Swain v. Goodman, 183 N. C., 531 , 112 S. E., 36 ;

Marsh v. R. R., 151 N. C., 160 , 65 S. E., 911 .

Affirmed.

OlabksoN, J. I concur in this opinion, as tbe case presents a question of pleading and practice.