In the petition to rehear the plaintiff contended this Court committed error in ordering the action dismissed. The reason assigned is that the motion to dismiss was not passed on by the Superior Court and not the subject of an exceptive assignment here.

This Court’s decision was based on the -view that the plaintiff stated a defective cause of action which the Court had the power to dismiss ex mero motu. “If the cause of action, as stated by the plaintiff, is inherently bad, why permit him to proceed further in the case, for if he proves everything that he alleges he must eventually fail in the action.” Ice Cream Co. v. Ice Cream Co., 238 N.C. 317, 77 S.E. 2d 910. Upon the authority of the case cited, the petition is

Dismissed.