dissenting: In the former opinion in this case reported in 216 N. C., 391, it was held that the allegations in defendant’s answer, .attempting to set up an affirmative defense under C. S., 2144, were insufficient to constitute a valid defense to the action based upon plaintiff’s judgment, and that the plaintiff’s demurrer thereto should have been sustained. This Court disposed of the matter in these words: “The court below should have sustained the demurrer to the defendant’s further defense under C. S., 2144, with right to move for leave to amend in accordance with the provisions of C. S., 515.”
It would seem that this Court, in the exercise of its supervisory power over proceedings in the Superior Court, has confined defendant’s procedure for the amendment of his pleadings to that prescribed in C. S., 515. 'With this the defendant has failed to do, as the court below has found. Upon that finding the court denied defendant’s right to amend. The letter of plaintiff’s counsel, relied on as a waiver, related to the time for arguing the motion and was written after the time limited for filing amendment had expired. There was no petition to rehear the former opinion. The able and accurate judge of the Superior Court rightly interpreted the former decision of this Court as constituting the law of the case, and binding both upon the court and upon the litigants. The procedure prescribed in the former opinion in this case is in accord with the language of this Court in disposing of numerous decided cases. White v. Charlotte, 207 N. C., 721, 178 S. E., 219; McKeel v. Latham, 202 N. C., 318, 162 S. E., 747; Morris v. Cleve, 197 N. C., 253, 148 S. E., 253; Scott v. Harrison, ante, 319; Johnston County v. Stewart, ante, 334. In these cases procedure under C. S., 515, was specifically indicated. In the Morris case, supra, Connor, J., speaking for the Court, referring to C. S., 515, said: “This statute is in aid of an expeditious administration of justice and should be liberally construed and applied.”
It is immaterial that the demurrer here considered was interposed by the plaintiff to an affirmative defense in the answer, rather than by a defendant to a complaint. By statute and in the decisions of this Court both are treated as governed by the same principle.
If the former opinion of the Court had not limited defendant’s procedure for amendment, I agree that the Superior Court would have had ample power, both inherently as well as by virtue of other applicable statutes, to allow amendments. But that was not the question before the trial judge. He was confronted with the language of this Court. Did he err in ruling in accordance with it? I do not think so.
Nor do I agree with the suggestion in the majority opinion that the proposed amendment to defendant’s answer could “not be resisted.” The amendment has not been filed, and an expression as to the sufficiency of what counsel informally proposed would seem to be, at this time, out of place.
*415In this connection it may not be improper to suggest that a change in our rules of procedure, in conformity with the practice in the Federal Courts wherein demurrers as a distinct form of pleading have been abolished and motions in the cause substituted, would eliminate a frequent occasion for delay in the trial of cases, and render obsolete much of the technicality and refinement which has grown up in our law with regard to demurrers.