dissenting: I think this Court ought not to dismiss this action upon the ground that the complaint fails to state facts sufficient to constitute a cause of action. The complaint did state a cause of action, and the Court might and would have given judgment for the plaintiff if the defendant had not pleaded, or in case he failed to plead, the coverture of his testatrix at the time she executed the note sued upon. It is settled that the plaintiff may have judgment against a married woman upon a note or alleged indebtedness of any kind executed or incurred while she ■was such married woman, unless she pleads her coverture. That is a defence she may or may not avail herself of, and she must plead it. Vick v. Pope, 81 N. C., 22; Neville v. *229Pope, 95 N. C., 346; Newhart v Peters, 80 N. C , 166; Nicholson v. Cox, 83 N. C., 48; Johnston v. Cochrane, 84 N. C., 446.
Hence, if a marriel woman should simply plead in a proper case that she did not execute the note sued upon, or that she had paid the same, or that it was barred by the statute of limitations, and the plea should be determined against her, the plaintiff would clearly be entitled to judgment, as she did not plead her coverture. And if on the trial of such plea, either party should assign error as to some ruling of the Court, and after final judgment adverse to him or her, he or she should appeal to this Court, the latter could not ex mero mofo, or upon motion of the feme defendant, dismiss the action upon the ground that the complaint failed to state facts sufficient to constitute a cause of action, because, it did sufficiently state a cause of action, in the absence of the defence of coverture properly pleaded.
In this case, for the reasons stated above, the Court below could not have dismissed the action for the cause last above mentioned, if the defendant had not availed himself of the defence of the coverture of his testratrix by demurrer or answer, and for the like reason, upon appeal in such case, this Court could not upon motion dismiss the action.
A mere motion to dismiss the action in such case is not sufficient, because in the absence of the coverture pleaded the complaint would be sufficient to entitle the plaintiff to judgment.
In this case the defendant pleaded by his answer the cov-erture of his testatrix. On the trial he assigned error as to certain rulings of the Court below, and after final judgment adverse to him he appealed to this Court. This Court should consider and dispose of the assignments óf error. It cannot properly grant the motion to dismiss the action upon the ground that the complaint fails to state facts sufficient to constitute a cause of action, because, simply upon its face, it does state a cause of action. Such motion will be allowed *230only when no cause of action is stated and when -the Court has not jurisdiction. The Code, § 242. The case of Pippen v. Wesson, 74 N. C., 437, does not sustain the action of this Court in this case. In that case the defendant demurred, and the Court sustained the demurrer, and gave judgment for the defendant. It did not grant a motion to dismiss the action nor did this Court; on appeal, the latter Court simply affirmed the judgment of the Court below.
Per Curiam. Error.