The opinion
Devin, J.
The case comes to us upon appeal from a judgment on the pleadings in favor of the defendant. The ruling of the court below was bottomed upon the view that as a matter of law plaintiff could not maintain his action, and that there was no issuable fact to be tried by a jury. C. S., 556.
A judgment on the pleadings, in favor of the defendant on an affirmative defense, can be approved only when the allegations of facts contained
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in the plaintiff’s pleadings and relevant inferences of fact deducible therefrom, construed liberally in his favor, fail in all material respects to make ont a case.
Adams v. Cleve,
218 N. C., 302 , 10 S. E. (2d), 911 ;
Pridgen v. Pridgen,
190 N. C., 102 , 129 S. E., 419 .
An examination of the plaintiff’s complaint and reply in this case leads us to the conclusion that defendant’s motion for judgment on the pleadings was improvidently allowed. While the defendant sets up in her answer a plea which, if established, would constitute a bar to the plaintiff’s action, the only admission by the plaintiff in his reply is that the previous judgment of divorce
a mensa
was by consent, and that his present action is based upon a separation which began subsequent thereto, and which has continued for two years next preceding the institution of this action, in January, 1943. There is no admission that his cause of action is based upon his own wrongful and unlawful conduct.
Brown v. Brown,
213 N. C., 347 , 196 S. E., 333 , and
Byers v. Byers, ante,
85. The pleadings raise issues of fact to be tried by jury.
The judgment rendered on the pleadings must be
Reversed.