Godwin v. . Gardner

Decided October 5, 1921

Supreme Court of North Carolina · decided 1921-10-05

<p>Pleadings — Issues—Evidence—Nonsuit—Demurrer—Trials.</p> <p>Where the complaint states a good cause of action to recover upon defendant’s notes secured by chattel mortgage, and the chattels are taken into possession by claim and delivery, which in turn are delivered to an intervener under bond for possession, the answer of the intervener stating that the defendant’s property had been taken upon his adjudication as a. bankrupt and his property thereunder distributed according to their respective priorities, raises matters of defense and are pleas in bar, which may neither be determined by motion as of nonsuit or on demurrer ore terms.</p>

Decided 1921-10-05

Stacv, J.

¶1 While it is stated in tbe record tbat a judgment of nonsuit was entered on tbe pleadings, we will assume tbat tbe action was dismissed on a demurrer ore terms. But, in either view, tbe judgment was erroneous.

¶2 Matters set up in defense, or as a bar to tbe plaintiff’s suit, and requiring proof, may not be considered upon a demurrer. Wood v. Kincaid, 144 N. C., 393.

¶3 A good cause of action is stated in tbe complaint; hence, tbe judgment of tbe Superior Court must be set aside and tbe parties will proceed as they may be advised. Tbe other questions discussed in plaintiff’s brief are not before us for decision.

¶4 Reversed.