Pleadings D c — Demurrer ore tenus to the complaint must distinctly specify the grounds of objection. A demurrer ore tenus to the complaint for insufficiency to state a cause of action must state the legal grounds upon which it is based or it will be disregarded. C. S., 512; Seawell v. Cole, 194 N.C. 546, cited and applied. CIVIL ACTION, before Harding, J., at Spring Term, 1931, of MECKLENBURG.
They did not, so far as the record shows, "distinctly specify the grounds of objection to the complaint" and their demurrer "might well have been disregarded" by the court below. Griffin v. Bank, 205 N.C. 253, 171 S.E. 71. G.S. 1-128 applies to all demurrers, written or oral. Seawell v. Cole, 194 N.C. 546, 140 S.E. 85; Adams v. College, 247 N.C. 648, 654, 101 S.E.2d 809. The court below did not disregard but overruled defendants' demurrer ore tenus.
If, as plaintiffs contend, defendant did not "distinctly specify the grounds of objection to the complaint," "it might well have been disregarded" by the court below. Griffin v. Bank, 205 N.C. 253, 171 S.E. 71. G.S. 1-128 applies to all demurrers, written or oral. Seawell v. Cole, 194 N.C. 546, 140 S.E. 85. But, as stated by Varser, J., in Snipes v. Monds, 190 N.C. 190, 129 S.E. 413: "Even after answering in the trial court, or in this Court, a defendant may demur ore tenus, or the Court may raise the question ex mero motu that the complaint does not state a cause of action." Also, see G.S. 1-134; Garrison v. Williams, 150 N.C. 674, 64 S.E. 783, and cases cited.
" The defendant in his brief has raised the point that in his complaint the plaintiff has failed to allege that Charlie Moss, the driver of the defendants' truck, was acting within the scope of his employment. If the defendants had not raised the point, we would do so ex mero motu. McIntosh, North Carolina Practice and Procedure, Section 436, page 447, citing McDougald v. Graham, 75 N.C. 310; Tucker v. Baker, 86 N.C. 1; Garrison v. Williams, 150 N.C. 674, 64 S.E. 783. The last cited case has been cited and approved in Snipes v. Monds, 190 N.C. 190, 129 S.E. 413; Seawell v. Cole, 194 N.C. 546, 140 S.E. 85, Key v. Chair Co., 199 N.C. 794, 156 S.E. 135; Watson v. Lee County, 224 N.C. 508, 31 S.E.2d 535, and in Lamm v. Crumpler, 233 N.C. 717, 65 S.E.2d 336. See also Hopkins v. Barnhardt, 223 N.C. 617, 27 S.E.2d 644.
In the case in hand it appears upon the face of the record that error is apparent in two aspects: First: The demurrer fails to distinctly specify the grounds of objection to the answer of defendant, and may be disregarded, G.S. 1-128. Love v. Comrs., 64 N.C. 706; Heilig v. Foard, 64 N.C. 710; George v. High, 85 N.C. 99; Bank v. Bogle, 85 N.C. 203; Gross v. Waller, 90 N.C. 149; Burbank v. Comrs., 92 N.C. 257; Elam v. Barnes, 110 N.C. 73, 14 S.E. 621; Ball v. Paquin, 140 N.C. 83, 52 S.E. 410; Seawell v. Cole, 194 N.C. 546, 140 S.E. 85; Griffin v. Bank, 205 N.C. 253, 171 S.E. 71; Wilson v. Motor Lines, 207 N.C. 263, 176 S.E. 750. The statute G.S. 1-128 declares that "The demurrer shall distinctly specify the ground of objection to the complaint, or it may be disregarded."
Wilson v. Chastain, 230 N.C. 390, 53 S.E.2d 290. In such case, the complaint is construed to aver all the facts that can be implied by fair and reasonable intendment from the facts expressly stated. Seawell v. Cole, 194 N.C. 546, 140 S.E. 85. But the rule of liberal construction cannot be invoked to read into the complaint an essential fact which has been omitted from it by the pleader. Lowman v. Comrs. of Lovelady, 191 N.C. 147, 131 S.E. 277.
Garrison v. Williams, 150 N.C. 675." Seawell v. Cole, 194 N.C. 546 (547); Key v. Chair Co., 199 N.C. 794 (796). The defendant was within his right when he demurred ore tenus.
It must be fatally defective before it will be rejected as insufficient." Brewer v. Wynne, 154 N.C. 467; Hoke v. Glenn, 167 N.C. 594; Lee v. Thornton, 171 N.C. 209; Horney v. Mills, 189 N.C. 728; S. v. Bank, 193 N.C. 524; Seawell v. Cole, 194 N.C. 546; Meyer v. Fenner, 196 N.C. 476; Ins. Co. v. Dey, 206 N.C. 368; Fairbanks, Morse Co. v. Murdock Co., 207 N.C. 348; In re Trust Co., 207 N.C. 802; Bowling v. Bank, 209 N.C. 463. It is the purpose of the code system of pleading that actions be tried upon their merits. Hoke v. Glenn, supra.
Whether the defendants should have been allowed to amend their counterclaim, after demurrer sustained, was a matter addressed to the sound discretion of the trial court, and is not reviewable on appeal. C. S., 515; McKeel v. Latham, 203 N.C. 246, 165 S.E. 694; Morris v. Cleve, 194 N.C. 202, 139 S.E. 230. There was no error in overruling the demurrer to the counterclaim as amended. Griffin v. Bank, 205 N.C. 253, 171 S.E. 71. Indeed, it might well have been disregarded (C. S., 512), or treated as a motion to dismiss ( Elam v. Barnes, 110 N.C. 73, 14 S.E. 621), from the refusal of which no appeal lies. Seawell v. Cole, 194 N.C. 546, 140 S.E. 85; Plemmons v. Improvement Co., 108 N.C. 614, 13 S.E. 188. Affirmed.
The record shows no demurrer to the complaint. Seawell v. Cole, 194 N.C. 546, 140 S.E. 85. Nor was it according to precedent, simply upon reading the pleadings, to dismiss the action on the defendant's plea of estoppel.