Batts v. Batts

• Decision Date: 16 April 1958
• Docket Number: No. 236,236
• Citation: 102 S.E.2d 862,248 N.C. 243
• Parties: Lola Steelman BATTS v. John Nathaniel BATTS.
• Court: North Carolina Supreme Court

Page 862

102 S.E.2d 862

248 N.C. 243

Lola Steelman BATTS v. John Nathaniel BATTS.

No. 236

Supreme Court of North Carolina.

April 16, 1958

L. L. Davenport, Nashville, John M. King, Rocky Mount, I. T. Valentine, Jr., Nashville, for defendant appellant.

Cooley & May, Nashville, for plaintiff appellee.

WINBORNE, Chief Justice.

The motion to strike for irrelevancy and redundancy is governed by G.S. § 1-153. It provides, in pertinent part, that 'if irrelevant or redundant matter is inserted in a pleading, it may be stricken out on motion of any person aggrieved thereby' and 'when the allegations of a pleading are so indefinite or uncertain that the precise nature of the charge or defense is not apparent, the court may require the pleading to be made definite and certain by amendment * * *. ' Here the defendant, having made motion to strike in apt time, it is made as a matter of right. See Lutz Industries, Inc., v. Dixie Home Stores, 242 N.C. 332, 88 S.E.2d 333, 335, and cases cited.

'The test is, does the pleader have a right to introduce in evidence the facts to which the allegation relates? If so, the motion should be denied; if not, it should be allowed. ' Lutz Industries, Inc., v. Dixie Home Stores, supra, citing Daniel v. Gardner, 240 N.C. 249, 81 S.E.2d 660. However, 'the denial of the motion to strike made in apt time, 'is not ground for reversal unless the record affirmatively reveals these two things: (1) That the matter is irrelevant or redundant; and (2) that its retention in the pleading will cause harm, or injustice to the moving party.' ' Hinson v. Britt, 232 N.C. 379, 61 S.E.2d 185.

In the light of these principles, a perusal of the complaint in instant case discloses that acts complained of began shortly after the marriage of plaintiff and defendant in 1919, and culminated in this action in 1957. The first allegation of cruel treatment and rendering of indignities in point of time was in 1919, then in the 1930s; then 1954; then 1955; and finally 1957. There is, thus, a connected chain of events from 1919 to 1957 with the exception of a period of years between the 1930s and 1954 when there are no allegations of specific acts. However there are allegations of general abuse with no dates specified scattered throughout the complaint.

So there seems to be sufficient allegation of indignities, cruelty, or abandonment from 1954 to 1957 upon which the judge could base his judgment of subsistence pendente lite. Hence the demurrer was...