Calloway v. Ford Motor Co.

• Decision Date: 16 June 1972
• Docket Number: No. 64,64
• Citation: 189 S.E.2d 484,281 N.C. 496
• Parties: Charles E. CALLOWAY v. FORD MOTOR COMPANY and Matthews Motors, Incorporated.
• Court: North Carolina Supreme Court

Page 484

189 S.E.2d 484

281 N.C. 496

Charles E. CALLOWAY v. FORD MOTOR COMPANY and Matthews Motors, Incorporated.

No. 64.

Supreme Court of North Carolina.

June 16, 1972.

Van Winkle, Buck, Wall, Starnes & Hyde, by O. E. Starnes, Jr., Asheville, for defendant appellant.

SHARP, Justice:

This Court has consistently held that 'after the time for answering a pleading has expired,' an answer may not be amended as of right. A motion to amend is addressed to the discretion of the court, and its decision thereon is not subject to review except in case of manifest abuse. Consolidated Vending Co. v. Turner, 267 N.C. 576, 148 S.E.2d 531 (1966); Hardy v. Mayo, 224 N.C. 558, 31 S.E.2d 748 (1944); Osborne v. Canton and Kinsland v. Mackey, 219 N.C. 139, 13 S.E.2d 265 (1941); 6 N.C. Index Pleadings § 32 (1968). Although these cases were decided prior to the adoption of the new Rules of Civil Procedure, G.S. § 1A--1 (1969), the rule they enunciate remains applicable today.

When Matthews moved under Rule 15(a) for permission to amend its answer by pleading the statute of limitations, G.S. § 1--52(1)(5) (1969), the motion was addressed to Judge Hasty's discretion, to be exercised as justice requires 'in view of the attendant circumstances.' 51 Am.Jur.2d Limitation of Action § 471 (1970). At that time the answers of both Matthews and Ford had been filed for more than one year and five months, and neither contained a plea of the statute. Clearly, at the time Judge Hasty denied Matthews' motion to amend, there was no basis for any contention that he had abused his discretion.

The question presented by this appeal is whether Judge Ervin, in his discretion, had authority to permit an amendment which Judge Hasty, in his discretion, had denied earlier.

The well established rule in North Carolina is that no appeal lies from one Superior Court judge to another; that one Superior Court judge may not correct another's errors of law; and that ordinarily one judge may not modify, overrule, or change the judgment of another Superior Court judge previously made in the same action. 2 N.C. Index 2d Courts § 9 (1967) and cases cited in footnote 50.

An order denying a motion to amend pleadings in an interlocutory order, that is, '(o)ne given in the progress of a cause upon some plea, proceeding, or default which is only intermediate and does not finally determine or complete the suit.' Black's Law Dictionary, p. 979 (1951); Greene v. Charlotte Chemical Laboratories, Inc., 254 N.C. 680, 120 S.E.2d 82 (1961). See 50 C.J.S. Judgments § 620 (1938). The doctrine of Res judicata does not apply to decisions upon ordinary motions incidental to the progress of the trial with the same strictness as to a judgment. See 56 Am.Jur.2d Motions, Rules and Orders § 30 (1971). It is frequently said that the doctrine does not apply unless the order involves 'a substantial right.' Temple v. Western Union Telegraph Co., 205 N.C. 441, 442, 171 S.E. 630 (1933). See 5 N.C. Index 2d Judgments § 37 (1968). Accordingly, the rule is that a judge has the power to modify an interlocutory order made by another whenever there is a showing of changed conditions which warrant such action. Interlocutory orders are subject to change 'at any time to meet the justice and equity of the case upon sufficient grounds shown for the same. Miller v. Justice, 86 N.C. 26, 30 (1882). See Bland v. Faulkner, 194 N.C. 427, 139 S.E. 835 (1927). For example, when a judge denies a motion for a change of venue upon the basis of his findings of crucial facts, his order denying the motion is conclusive of the right to remove On the facts found. However, because of events intervening thereafter the ends of justice might then require removal of the action. Rutherford College v. Payne, 209 N.C. 792, 184 S.E. 827 (1936).

When a judge rules upon a motion to strike an averment from a pleading on the ground that it is irrelevant, improper or prejudicial he rules as a matter of law, whether he allows or disallows the motion. No discretion is involved and his ruling finally determines the rights of the parties unless it is reversed upon appeal. Greene v. Charlotte Chemical Laboratories, Inc., Supra; Wall v. England, 243 N.C. 36, 89 S.E.2d 785 (1955); Scottish Bank v. Daniel, 218 N.C. 710, 12 S.E.2d 224 (1940).

Likewise, when one judge allows a motion to amend a pleading in his discretion and the amendment is made in accordance with the authority granted, a second judge may not strike it on the ground that the first erred in allowing it. He is 'under the necessity of observing the terms of the judgment allowing the (party) to amend. State v. Standard Oil Co. of New Jersey, 205 N.C. 123, 126, 170 S.E. 134, 135 (1933). Accord, Dockery v. Fairbanks, 172 N.C. 529, 90 S.E. 501; 29 N.C.L.Rev. 3, 20 (1950). In Hardin v. Greene, 164 N.C. 99, 80 S.E. 413 (1913), at the Fall Term 1912, the presiding judge made an order granting defendant an unrestricted right to file an amended answer. Defendant amended by pleading the statute of limitations. At the Spring Term 1913, the succeeding judge struck the plea. On appeal it was held that the judge at a subsequent term was without authority to strike the plea.

Several decisions of this court indicate that when a judge in his discretion Denies a motion to amend pleadings, or for a bill of particulars, his order of denial is no bar to a subsequent motion or application for the same relied to another judge.

In Townsend v. Williams, 117 N.C. 330, 23 S.E. 461 (1895), the defendant appealed the judge's refusal to allow his motion for a bill of particulars. The Supreme Court declined to reverse the discretionary order but in finding 'no error,' said, 'As its refusal was a matter of discretion, and therefore not Res judicata, it is open to the judge below, in his discretion, to grant the motion now if renewed in time to avoid delay in the trial.' Id. at 337, 23 S.E. at 463.

In Revis v. Ramsey, 202 N.C. 815, 164 S.E. 358 (1932), an action on a note, at the October 1931 Term the defendant Zade Ponder moved to amend his answer by alleging that he signed the note as a surety and that the action against him was barred by the three-year statute of limitations. Judge Stack denied the motion. At the February 1932 Term defendant renewed the same motion, and Judge Sink allowed it. Plaintiff appealed 'upon the theory that the matter was then Res judicata and no appeal lies from one superior court judge to another.' The appeal was dismissed as premature, but Chief Justice Stacy pointed out that the 'principle of Res judicata does not extend to ordinary motions incidental to the progress of a cause, but only to those involving substantial rights.' Id. at 817, 164 S.E. at 358.

Overton v. Overton, 259 N.C. 31, 129 S.E.2d 593 (1963), began as a special proceeding for the allotment of a year's allowance and dower. Petitioner had dissented to the decedent's will six months and six days after its probate. Respondents' answer was a general denial which did not plead the six-months' statute of limitations. G.S. § 30--1 (1950). At the trial respondents' motion to amend by pleading the statute was denied. Disregarding the jury's verdict in favor of petitioner the judge erroneously entered judgment for respondents. On appeal the Supreme Court reversed and remanded the case for the entry of judgment for petitioner. From the judgment so entered respondents immediately appealed. Upon the second appeal, a new trial was ordered for errors in the judge's charge at the trial. In its opinion the court specifically authorized respondents to renew their motion to amend in the Superior Court. Citing Revis v. Ramsey, Supra, the Court said: 'It lies within the sound discretion of the court to allow or deny such motions. It is pointed out that prior rulings on motions to amend are not necessarily Res judicata. The doctrine of Res judicata does not apply to ordinary motions incidental to the progress of the trial, but only to those involving a substantial right.' Overton v. Overton, 260 N.C. 139, 146, 132 S.E.2d 349, 354 (1963).

In Dixie Fire & Casualty Co. v. Esso Standard Oil Co., 265 N.C. 121, 143 S.E.2d 279 (1965), the judge presiding at the January 1965 Session denied the plaintiff's motion to amend the complaint to allege negligence and proximate cause with more particularity. At the next term another judge sustained defendant's demurrer to the complaint for that it failed to allege actionable negligence. In the opinion reversing the judgment...