Tights, Inc. v. Indian Head Hosiery Co. , 7 N.C. App. 369 ( 1970 )

HedbicK, J.

The only question before this Court for determination is whether the order entered by Collier, J., sustaining the defendant’s demurrer and dismissing the plaintiff’s action is proper in light of the effect of the order entered by Lupton, J., earlier in the action. In order to answer this question it is essential that we first determine the effect of the order entered by Judge Lupton on 1 May 1969. Judge Lupton, while sustaining the demurrer of the defendant, allowed the plaintiff corporation thirty days in which it could file an amended complaint. “When a judge of the Superior Court sustains a demurrer to the complaint and grants plaintiff time to file an amended complaint, the order is in effect a ruling that the complaint contains a defective statement of a good cause of action and is subject to amendment, and therefore another Superior Court judge is bound by such ruling even if the ruling is erroneous, since such order cannot be set aside by another Superior Court judge for error of law, nor can it be reviewed on appeal in the absence of an exception thereto.” 6 Strong, North Carolina Index 2d, Pleading, § 32; Burrell v. Transfer Co., 244 N.C. 662, 94 S.E. 2d 829 (1956).

In the Burrell case, supra, Judge (now Justice) Sharp sustained a demurrer ore tenus to the original complaint and allowed the plaintiff thirty days in which to file an amended complaint. After the amended complaint was filed, the defendant moved to dismiss the action. Judge Phillips allowed the motion to dismiss stating that he believed the plaintiff had stated a defective cause of action and that therefore Judge Sharp was correct in sustaining the demurrer and that her dismissal of the action was correct. The Supreme Court pointed out that Judge Sharp had not dismissed the action but had instead given the plaintiff time in which to file an amended complaint, and that Judge Phillips had no authority to dismiss the action and reversed his judgment.

In the present case when Judge Lupton sustained the demurrer and allowed the plaintiff thirty days in which to file an amended complaint, he in effect ruled that the original complaint contained a defective statement of a good cause of action. Whether the complaint contained a defective statement of a good cause of action or a statement of a defective cause of action was a question of law and if Judge Lupton’s decision thereon was incorrect it was erroneous. Burrell v. Transfer Co., supra. Judge Collier was without authority to set aside Judge Lupton’s decision on this question; therefore, it Was error for him to dismiss the plaintiff’s action on the ground that it contained a statement of a defective cause of action. This Court will not undertake to review the judgment entered in this action by-Judge Lupton since no exception was taken thereto at the time it was entered.

For the reasons stated above the judgment of Collier, J., dismissing the action instituted by the plaintiff is

Reversed.

Campbell and PARKER, JJ., concur.