Shaffer v. Morris Bank

Adams, J.

Under our practice all demurrers are special and may be pleaded only for the causes specified in tbe statute. O. S., 511, 512;

Love v. Comrs., 64 N. C., 706 . Tbe causes for which tbe present defendants demur are the improper joinder of parties and causes, tbe plaintiff’s failure to state a cause of action, and “no jurisdiction” of tbe person of one of tbe defendants, or of tbe subject of tbe action.

Tbe demurrer admits all tbe allegations in tbe complaint; and in giving tbe complaint a liberal interpretation we must adhere to tbe oft-repeated rule tbat if it sets out facts sufficient to constitute a cause of action, or if facts sufficient for tbat purpose can fairly be gathered from it tbe pleading will stand, because tbe plaintiff is entitled to tbe benefit of every presumption and of every reasonable intendment.

S. v. Bank, 193 N. C., 524 ;

Seawell v. Cole, 194 N. C., 546 .

The demurrer contains tbe recital tbat tbe defendants “enter a special appearance and demur to tbe complaint.” Tbe feme defendant undertook to amend the original demurrer by stating tbat she entered a special *418 appearance and moved to dismiss the action as to her, for the reason that she was a resident of Baltimore and not subject to the jurisdiction of the court.

If the feme defendant meant that she had been brought into court by defective process or defective service she should have made a special appearance in the beginning and questioned the court’s jurisdiction of her person. Instead of doing this she joined her codefendants in filing a demurrer to the sufficiency of the complaint and thereby entered a general appearance. The demurrer previously filed was addressed to the merits of the action and constituted a full appearance and submission to the jurisdiction of the court.

Motor Co. v. Reaves, 184 N. C., 260 ;

Scott v. Life Asso., 137 N. C., 515 ; N. C. Pr. & Pro., sec. 328.

Morris Bank took out letters of administration in Cumberland'County, and the defendants demur on the ground that the complaint is an attack upon the administrator’s final account, over which, it is contended, the Superior Court of Nash County has no jurisdiction. Whether the object of the action is exclusively to impeach the final account may be doubted; but if it is, we must keep in mind the clear distinction between jurisdiction and venue. Jurisdiction implies or imports the power of the court; venue the place of action. Prior to 1868 venue was jurisdictional.

Killian v. Fulbright, 25 N. C., 9 ;

Smith v. Morehead, 59 N. C., 360 . Under the present practice it is otherwise. Venue may now be waived because it is not jurisdictional, and is available to the object-, ing party, not by demurrer, but by motion in the cause. C. S., 470;

Rector v. Rector, 186 N. C., 618 ;

Clark v. Homes, 189 N. C., 703 .

There is another point. The complaint shows that the plaintiff resides in Nash County and that all the defendants are nonresidents of the State. Neither of them resides in Cumberland County. If the action be treated as a suit upon the official bond of the administrator the defendants will be confronted by the following statute: “All actions upon official bonds or against executors and administrators in their official capacity must be instituted in the county where the bonds were given if the principal or any surety on the bond is in the county; if not, then in the plaintiff’s county.” C. S., 465.

The second, third, fourth, and sixth grounds of demurrer invoke matters which do not appear on the face of the complaint and ignore the specific allegation that the alleged agreement of the parties and the plaintiff’s assignment of his interest were procured by false and fraudulent representations.

Sandlin, v. Wilmington, 185 N. C., 257 ;

Hamilton v. Rocky Mount, 199 N. C., 504 .

The complaint does not reveal such a misjoinder of parties and causes as requires a dismissal of suit.

Shuford v. Yarborough, 197 N. C., *419 150. As pointed out in Trust Co. v. Peirce, 195 N. C., 717 , the complaint states a connected story, forming a general scheme and tending to a single end. The plaintiff may unite in the same complaint several causes of action if they ail arise out of the same transaction or a transaction connected with the same subject of action. C. S., 507.

The judgment sustaining the demurrer is reversed. When they answer the complaint the defendants will have opportunity to set up all the defenses on which they rely. Judgment Reversed.