Opinion
(Filed 16 January, 1929.)
Pleadings — Demurrer — Effect of Demurrer.
Where the defendant demurs to the sufficiency of the allegations of the complaint, and sets up a counterclaim by way of answer to which the plaintiff demurs, and both demurrers are sustained: Held, the matters alleged both in the complaint and answer are admitted, and under the facts of this appeal the rights of the parties can be more satisfactorily determined after a full disclosure of all the facts and circumstances, and the action of the trial judge in sustaining the demurrers is reversed on appeal.
APPEAL by plaintiff and defendants from MacRae, Special Judge, at October Special Term, 1928, of HAYWOOD. Reversed.
Alley Alley for plaintiff.
Joseph E. Johnson for defendants.
The controversy involves the alleged rights of the parties growing out of the construction and use of a party wall. The plaintiff brought suit to recover the sum of $513.92 as one-half the actual cost of the construction of the wall in question, and the defendants, denying certain material allegations of the complaint, pleaded a counterclaim to the plaintiff's cause of action, the circumstances in reference to which are fully set forth in the further answer of the defendants. They pray that the plaintiff's action be dismissed and that they recover of the plaintiff the sum of $1,500. The plaintiff filed a reply to the further answer and counterclaim; and after the jury had been empaneled and the pleadings had been read, the defendants demurred ore tenus to the complaint on the ground that it does not state facts sufficient to constitute a cause of action in that it seeks contribution from the defendants for one-half the cost of building an additional story to an existing party wall, resting one-half on the plaintiff's land and one-half on the defendants' land. The plaintiff demurred ore tenus to the further answer and counterclaim for that sufficient facts are not therein stated to constitute a cause of action. Both demurrers were sustained and the complaint and the counterclaim were dismissed and the costs were taxed against the plaintiff.
As each demurrer admits of the allegations of the adverse pleadings, we are of opinion that the rights of the parties can be more satisfactorily determined after a full disclosure of all the facts and circumstances which are made the basis of the plaintiff's complaint and of the defendants' further answer and counterclaim. The judgment sustaining each demurrer is therefore reversed to the end that the facts may be developed and the disputed allegations determined.
Reversed.