Alexander v. Brown
| Decision Date | 24 September 1952 |
| Docket Number | No. 110,110 |
| Citation | 236 N.C. 212,72 S.E.2d 522 |
| Parties | ALEXANDER, v. BROWN et al. |
| Court | North Carolina Supreme Court |
J. W. Haynes, W. K. McLean, Roy A. Taylor, Asheville, for defendants-appellants.
Guy Weaver, Asheville, for plaintiff-appellee.
Since the deprivation of personal liberty suffered by a plaintiff and all circumstances of aggravation attending it constitute elements of damage in an action for malicious prosecution, the present plaintiff's version of the facts accompanying his arrest and imprisonment is clearly germane to his second cause of action. 54 C.J.S., Malicious Prosecution, section 112.
G.S. § 1-163 provides that 'The judge * * * may * * * amend any pleading * * * by inserting * * * allegations material to the case', and G.S. § 1-152 specifies that 'The judge may likewise, in his discretion, * * * allow an * * * act to be done, after the time limited, or * * * may enlarge the time.' These statutory provisions conferred upon Judge Bobbitt the discretionary power to extend the time for filing the amendment to the complaint to the date specified in his order. Smith v. New York Life Insurance Company, 208 N.C. 99, 179 S.E. 457.
The defendants insist with much earnestness and eloquence that Judge Bobbitt erred in permitting the plaintiff to file a pleading containing the first eight paragraphs of the amendment and in denying their motion to strike such paragraphs from the amendment even if he did possess discretionary power to permit the plaintiff to file an amendment to the complaint after the time limited in Judge Rudisill's order. They advance these arguments to support their position: That when he recast his complaint, the plaintiff incorporated his version of the facts attending his arrest and imprisonment in his second cause of action by appropriate reference to the allegations of his first cause of action; that Judge Rudisill adjudged as a matter of law that the plaintiff's version of these facts was immaterial and irrelevant to his second cause of action and prejudicial to the defendant Lawrence E. Brown, and struck out the first paragraph of the plaintiff's second cause of action for that reason; that this ruling of Judge Rudisill, whether sound or unsound, became binding on the parties as 'the law of the case' by the plaintiff's failure to have it reviewed on appeal; that Judge Bobbitt's action in permitting the plaintiff to file a pleading containing the first eight paragraphs of the amendment and in refusing to strike such paragraphs from the amendment was tantamount to a reversal of Judge Rudisill's ruling because the first eight paragraphs of the amendment set out in specific detail the plaintiff's version of the facts accompanying his arrest and imprisonment; and that consequently Judge Bobbitt's action is invalidated by the rule applied in Tallassee Power Company v. Peacock, 197 N.C. 735, 150 S.E. 510, that one superior court judge cannot review the decision of another superior court judge upon a matter of law or legal inference.
The position of the defendants is rendered...
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Corprew v. Geigy Chemical Corp., 34
...allegations set forth in another separately stated cause of action. Wrenn v. Graham, 236 N.C. 719, 74 S.E.2d 232; Alexander v. Brown, 236 N.C. 212, 72 S.E.2d 522; Guy v. Baer, 234 N.C. 276, 67 S.E.2d The demurrer should have been sustained on the ground of improper joinder of causes of acti......
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Harmon v. Harmon, 246
...where a judge is vested with discretion, his doing or refusing to do the act in question is not reviewable upon appeal. Alexander v. Brown, 236 N.C. 212, 72 S.E.2d 522; United American Free-Will Baptist Church, Northeast Conference v. United American Free-Will Baptist Church, Northwest Conf......
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Shears v. Adams
...it. All presumptions are in support of the judgment and nothing will be presumed against it. 49 C.J.S. Judgments § 436; Alexander v. Brown, 236 N.C. 212, 72 S.E.2d 522; East Carolina Lumber Company v. West, 247 N.C. 699, 102 S.E.2d 248; Chappell v. Small, 194 Ga. 143, 20 S.E.2d 916. As a ge......
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Early v. Eley
...The contention cannot be sustained. G.S. § 1-152 authorizes the judge, in his discretion, to enlarge time for pleading. Alexander v. Brown, 238 N.C. 212, 72 S.E. 2d 522; Aldridge v. Greensboro Fire Ins. Co., 194 N.C. 683, 140 S.E. 706. The exercise of the court's discretion is not subject t......