Williams v. ASHEVILLE CONTRACTING COMPANY , 257 N.C. 769 ( 1962 )

127 S.E.2d 554 (1962) 257 N.C. 769

Robert Calvin WILLIAMS
v.
ASHEVILLE CONTRACTING COMPANY.

No. 234.

Supreme Court of North Carolina.

October 10, 1962.

Gilliland & Clayton, Warrenton, for appellant.

Spruill, Thorp, Trotter & Biggs, Rocky Mount, for appellee.

PER CURIAM.

We hold that where an appeal is taken from an order sustaining a demurrer on the ground that the complaint does not state a cause of action, the appellant may abandon his appeal; and a nonsuit entered by the Clerk of the Superior Court, at appellant's request, is tantamount to an abandonment of the appeal. Leggett v. Smith-Douglass Company, Inc., 257 N.C. 646, 127 S.E.2d 222.

The case on appeal not having been served within the time allowed, it was subject to dismissal in the Superior Court pursuant to G.S. § 1-287.1, without moving to docket and dismiss in the Supreme Court. However, when the appeal was abandoned or not perfected within the time allowed, the order of the court below sustaining the demurrer and dismissing the action became the law of the case and the plaintiff was thereby precluded from amending his complaint which ordinarily may be done when a demurrer is sustained without dismissing the action. Mills v. Richardson, 240 N.C. 187, 81 S.E.2d 409.

The order vacating the voluntary nonsuit is reversed.

Reversed.