Sutton v. Davenport

The proper way to present the question of estoppel is by answer setting out the facts, not by motion to dismiss for want of jurisdiction. Reid v. Holden, 242 N.C. 408, 88 S.E. 2d 125. When, as here, facts are pleaded to estop a party from asserting a right, the sufficiency of the plea cannot be determined before the evidence supporting the plea is offered. Reid v. Holden, supra; Ransom v. Robinson, 249 N.C. 634, 107 S.E. 2d 87.

Here the parties apparently treated the “motion to dismiss” as an answer and at least tacitly consented to a determination of the effect of that plea prior to a trial…