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eBook details

• Title: Williams v. Hunter
• Author : Supreme Court of North Carolina No. 167
• Release Date : January 10, 1962
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 73 KB

Description

Appellant challenges the right of Judge McConnell to act on the motion to strike because, as he contends, the allowance of the motion would constitute a reversal of Judge Sharp's order. This position would be sound if the defendants assigned some reason for removing the pleading from the file other than a failure to state a defense. This is not what they seek to accomplish. It is apparent the ""Motion to Strike"" is intended to test the legal sufficiency of the pleading. The way to raise that question is by demurrer. Turner v. Board of Education, 250 N.C. 456, 109 S.E.2d 211; Rhodes v. Asheville, 229 N.C. 355, 49 S.E.2d 638. The fragrance of the rose is not destroyed by calling it a weed. Nor may what is in fact a demurrer gain strength or lose vitality by designating it as a motion to strike. Where a ""Motion to Strike"" challenges the legal efficacy of a pleading, it is by and will be treated as a demurrer. Mercer v. Hilliard, 249 N.C. 725, 107 S.E.2d 554; Etheridge v. Light Co., 249 N.C. 367, 106 S.E.2d 560. If this were in fact an appeal from an order merely striking portions of a pleading, it would, under Rule 4(a) (2), 242 N.C. 766, be necessary to dismiss the appeal.

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