31 S.E. 351 | N.C. | 1898
Under The Code, sec. 581, the defendant may be examined before pleadings filed to procure information in framing the complaint as was the case inHolt v. Warehouse Co.,
The examination in this case not having been asked to procure evidence in framing the complaint, his Honor, Judge Bryan, properly held, at Fall Term, 1897, that the order to examine the defendants before answer filed was premature. At April Term, 1898, Judge Brown overruled the demurrer and gave the defendants till 20 May to file answer, and ordered examination to be taken 23 May. The issue would regularly have been joined by filing the answer at April term, and as by the grace of his Honor time was given till 20 May, he was within the practice by setting the examination for 23 May, a date after issue should be joined, and the former order of Judge Bryan, made at a different stage of the cause, was not res judicata. The defendants appealed at April Term, 1898, which lay from overruling the demurrer, though not from an order directing examination of witnesses, and this was held in this case, (61)Pender v. Mallett,
This brings us to the consideration of the demurrer, from overruling which an appeal lay, but as to which we find no error. The first two grounds of first demurrer for misjoinder are eliminated by the omission of the parties and causes of action objected to in the second or substituted complaint filed by leave of court, and the finding of fact by Judge Brown that there has been a discontinuance as to them. The third ground of demurrer that the complaint was argumentative and evidentiary is not ground for demurrer, but, if true, would have sustained a motion (if made before answer or demurrer) for a repleader and to make the complaint *70
more explicit. Daniel v. Fowler,
No error.
Cited: Reynolds v. R. R.,
(63)