Green v. Best , 9 N.C. App. 599 ( 1970 )

176 S.E.2d 853 (1970)

Walter G. GREEN
v.
William R. BEST.

No. 7015SC597.

Court of Appeals of North Carolina.

October 21, 1970.

Wilkinson & Vosburgh, by John A. Wilkinson, Washington, for plaintiff appellee.

Latham, Pickard & Ennis by James F. Latham, Burlington, for defendant appellant.

BRITT, Judge.

Plaintiff contends that because of Rule 4(a) of the Rules of Practice in the Court of Appeals, an appeal by defendant from the order denying his motion to dismiss plaintiff's action for that the complaint fails to state a claim upon which relief can be granted is not proper. We agree with the contention.

Although defendant does not state in his motion to dismiss the rule of Civil Procedure under which he moves, presumably it is Rule 12(b) (6). In the recent case of Sutton v. Duke, et al., 277 N.C. 94, 176 S.E.2d 161 (filed 28 August 1970), opinion by Sharp, Justice, we find:

"A motion to dismiss `for failure to state a claim upon which relief can be granted' is the modern equivalent of a demurrer. (citations) * * * Accordingly, we treat the demurrer in this case as a motion to dismiss under our Rule 12 (b)(6) and consider whether plaintiff has stated in his complaint `a claim upon which relief can be granted'."

In like manner we feel that until Rule 4 of the Rules of Practice in the Court of Appeals is rewritten to conform with the Rules of Civil Procedure, we should treat a motion to dismiss under Rule 12(b) (6) as a demurrer and not entertain an appeal from an order denying the motion, subject to the right of the movant to petition for certiorari as envisioned by said Rule 4.

For the reasons stated, the appeal is dismissed.

Appeal Dismissed.

CAMPBELL and VAUGHN, JJ., concur.