Bank v. . Gahagan , 210 N.C. 464 ( 1936 )

Civil action to recover $1,210, balance alleged to be due on promissory note, executed by defendant Grady Gahagan to plaintiff, and secured by assignment of maker's interest, as heir or legatee, in his father's estate.

The complaint declares upon the note and assignment. Grady Gahagan filed answer, and the cause is now pending between him and the plaintiff.

In respect to the other defendants, it is alleged that the said "defendants, executors of the last will and testament of Wade Gahagan, are now due and owing to the defendant, Grady Gahagan, and unpaid to this plaintiff, the sum of $1,697.33."

Motion lodged by Bonnie Gahagan to dismiss action as to her, or to strike out her name as defendant, because she had never qualified as executrix. Overruled; exception.

Demurrers interposed by the defendants, individually and as executors, on ground that complaint does not state facts sufficient to constitute cause of action as to them, either in their official capacity or as individuals. Overruled; exception.

Defendants appeal, assigning errors. The motion of Bonnie Gahagan that she be eliminated as a defendant seems well founded and should have been allowed. Winders v. Southerland,174 N.C. 235, 93 S.E. 726; Worth v. Trust Co., 152 N.C. 242,67 S.E. 590. Indeed, it is not alleged in the complaint, other than inferentially perhaps, that any of the defendants ever qualified as executors under the will of Wade Gahagan, deceased.

The complaint alleges no cause of action against the defendants, individually. Hence, the demurrer thus interposed should have been sustained.

Nor is it thought that sufficient facts are stated to constitute a cause of action against the executors. The allegation of the amount "now due and owing the defendant Grady Gahagan" seems only a conclusion of the pleader. The facts upon which this conclusion rests are not stated. It is not alleged how the indebtedness arose or that it is covered by plaintiff's assignment.

While "unnecessary repetition" is condemned by the statute, C. S., 506, and allegations of pleadings are to be construed liberally "with a view to substantial justice between the parties," C. S., 535, still it is a necessary requirement that the complaint shall contain "a plain and concise statement of the facts constituting a cause of action," C. S., 506, which means that it shall contain a plain and concise statement of all the facts necessary to enable the plaintiff to recover. Comrs. v. McPherson,79 N.C. 524; Ins. Co. v. Dey, 206 N.C. 368, 174 S.E. 89.

A demurrer admits facts properly pleaded, but not inferences or conclusions of law. Distributing Corp. v. Maxwell, 209 N.C. 47,182 S.E. 724; Phillips v. Slaughter, 209 N.C. 543, 183 S.E. 897; Hussey v.Kidd, 209 N.C. 232, 183 S.E. 355; Phifer v. Berry, 202 N.C. 388,163 S.E. 119. The present complaint would seem to be bad as against the demurrers.

It is still open to the plaintiff, however, to ask to be allowed to amend its complaint, if so advised. C. S., 515; Oliver v. Hood, Comr.,209 N.C. 291, 183 S.E. 657.

It should be observed that this is not an administration suit. Rigsbeev. Brogden, 209 N.C. 510, 184 S.E. 24.

Reversed.