Morgan v. High Penn Oil Co.

236 N.C. 615, 73 S.E.2d 477 (1952)



An order overruling a demurrer ore tenus is not appealable.


A couple owns and occupies a tract of land affected by a company that casts large quantities of noxious fumes and gases onto the neighboring land (the couple's land) causing the couple to suffer great annoyance and discomfort in the enjoyment of their property and inflicting upon such property substantial damage. They filed a complain alleging that continued maintenance of the resultant nuisance would  destroy both the usefulness and value of their land. The company interposed a demurrer ore tenus on the theory that the complaint does not state facts sufficient to constitute a cause of action. The trial court the demurrer and the company appealed the action to the Supreme Court of North Carolina. 


Can you appeal an order overruling a demurrer ore tenus?




An order overruling a demurrer ore tenus was not appealable. If an appeal lay in such cases, every defendant in every case could have procured 6 or 12 months' delay by simply objecting to the jurisdiction or to the sufficiency of the complaint, no matter how plain the case or how utterly unfounded the grounds of the objection, since judgment could not have been entered as when a frivolous demurrer was filed.

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