Hartsfield v. . Bryan
98 S.E. 379
N.C.
1919
Check Treatment
Walker, J.,

after stating the case: There are no terms of court where a proceeding is pending before the clerk. He has no stated terms or sessions, and each case has its own return day. The petition is therefore sufficiently entitled if any defect of the kind indicated would he the subject of demurrer.

We are of the opinion that there are sufficient allegations as to the real parties in interest, and as to those who are named in the. first paragraph of the petition being the heirs of John Haywood. The specific allegation is that the petitioners for whom Mr. Whitehurst appeared as attorney at law and in fact are “the heirs at law of John Haywood, deceased,” and also that he appeared “on behalf of all other persons having a like interest as heirs of John Haywood, deceased.” Here is a clear statement that the said parties are heirs at law of John Haywood, and that they are the persons who are really interested in the special proceeding.

The objection that Mr. Whitehurst brings the suit in his own name, although for the parties named, and is not himself interested in the proceeding, is untenable, as he does not in fact sue for himself or set up any interest in the property- which is in dispute, but brings' the suit only in behalf of those parties. It is substantially the same as if he had first named the .parties and then stated that they appeared by him as their attorney, which would have been the better form. The error, though, is formal only, and not at all material, as the true character of the proceeding appears with sufficient certainty. A complaint will be sustained *169 as against a demurrer, as we have beld, if any part presents facts sufficient to constitute a cause of action, or if facts sufficient for that purpose can be gathered from it, under a liberal construction of its terms. Blackmore v. Winders, 144 N. C., 212; Bank v. Duffy, 156 N. C., 83; Eddleman v. Lentz, 158 N. C., 65, 66; Hendrix v. R. R., 162 N. C., 9. We said in Bank v. Duffy, supra, that a complaint will not be overthrown by demurrer unless it is wholly insufficient — that is, if from all its parts we can see that there is a cause of action and sufficient ground for relief in law or equity. But it must not be supposed, as was said in Eddleman v. Lentz, supra, that because pleadings are now under the Code construed favorably to the pleader, to effectuate the main purpose of having cases tried upon their real merits, it permits the pleader to disregard the ordinary and familiar, rule requiring pleadings to be so drawn as.to present clearly the issues in the case. The Code provides that the cause of action shall be plainly and concisely stated, but this does not mean that essential fullness of statement shall be sacrificed to' conciseness, but that all the facts going to make up the cause of action must be stated as plainly and concisely as is consistent with perfect accuracy, and .that no material allegation should be omitted. Looseness in pleading and inadequacy of allegation are as much condemned by the present code of procedure as they were under the former strict and exacting system of the common law. It is form and fiction that have been abolished, but the essential principles of good pleading have been retained. Blackmore v. Winder, supra, and Bank v. Duffy, supra.

We think the petition in this case is framed with such substantial accuracy as to disclose a good cause of action. Brewer v. Wynne, 154 N. C., 467; Womack v. Carter, 160 N. C., 286. But, while we sustain the judge in overruling the demurrer, we can well see that if the petition had been drawn with more regard for the rules as to certainty and precision, the demurrer .would not have been interposed, and this appeal would have been avoided. Consequently, both parties were at fault, and for this reason and in the exercise of our discretion we divide the costs of this Court. The plaintiff will pay one-half and the defendant James A. Bryan the other half thereof. The defendant will be allowed to ■answer when issues can be framed and the case tried upon its merits. He will then have an opportunity to be heard upon all the facts, without prejudice from the overruling of the demurrer.

No error.