Garrett v. Rose

Decision Date15 October 1952
Docket NumberNo. 108,108
Citation72 S.E.2d 843,236 N.C. 299
CourtNorth Carolina Supreme Court
PartiesGARRETT, v. ROSE.

Allsbrook & Benton, Roanoke Rapids, and Gardner, Connor & Lee, Wilson, for plaintiff-appellee.

Bunn & Bunn, Rocky Mount, Lucas & Rand, Wilson, and Battle, Winslow & Merrell, Rocky Mount, for defendant and J. Brian Scott, ancillary administrator c. t. a., appellants.

ERVIN, Justice.

The defendant undertakes to raise these questions on his appeal:

1. Did the judge err in denying his motion for judgment on the pleadings?

2. Did the judge err in striking from the answer the allegations concerning the contract of the grandchildren of David Williams for the division of the consideration to be paid by A. P. Petway for the remainder interests in the farm?

The first of these questions is not properly before us for the very simple reason that an immediate appeal does not lie from the denial of a motion for judgment on the pleadings. Erickson v. Starling, 235 N.C. 643, 71 S.E.2d 384. This rule is bottomed on sound reason. It is designed to make effective the constitutional guaranty that justice shall be administered without delay. N.C.Const. art. I, § 35; Veazy v. City of Durham, 231 N.C. 357, 57 S.E.2d 377. If the law permitted an immediate appeal from the denial of a motion for judgment on the pleadings, any litigant could delay the trial of any action on its merits by the simple expedient of moving for judgment on the pleadings and giving notice of appeal from an adverse ruling on his motion. The rule does not preclude a litigant from obtaining a judicial review of the propriety of the denial of his motion for judgment on the pleadings in case it becomes necessary. He may preserve an exception to the ruling, and have it considered on an appeal from a final judgment adverse to him. Erickson v. Starling, supra.

We would be compelled to affirm the ruling of the judge denying the motion for judgment on the pleadings if such ruling were subject to review at this time. The able counsel who represent the defendant have succumbed to the temptation which lies in constant wait for loyal and optimistic advocates, and causes its victims to see in denials of their adversaries admissions of the justice of their client's cause. The record does not support their contention that the reply admits all of the material allegations of the answer. While it does concede the execution of certain of the instruments in the defendant's chain of title, the reply denies the crucial averments of the answer relating to the title and right of possession of the defendant, and leaves unimpaired the allegations of the complaint respecting the title and right of possession of the plaintiff.

The statute codified as G.S. § 1-153 specifies that 'If irrelevant * * * matter is inserted in a pleading, it may be stricken out on motion of any person aggrieved thereby'. The judge acted under this statutory provision when he allowed the motion of the plaintiff to strike from the answer the allegations that on November 3, 1916, the plaintiff entered into a contract under seal with Margaret Barrow, Frank W. Garrett, Paul Garrett, Alice W. Pender, Dora Vinson, and R. Lloyd Williams whereby the contracting parties covenanted, in substance, that the $15,500 to be paid by A. P. Petway for the remainder interests in the farm should belong to all seven of them, share and share alike, instead of going to such of them only as should be living at the death of Frances Louisa Harrison. The question of the correctness of this ruling is properly before us because an immediate appeal lies from the granting of a motion to strike out parts of a pleading. Citizens' Savings & Loan Co. v. Warren, 204 N.C. 50, 167 S.E. 494; Ellis v. Ellis, 198 N.C. 767, 153 S.E. 449.

If allegations in a pleading are relevant upon any admissible theory, they ought not to be stricken out on motion. The test of relevancy of allegations sought to be stricken from an answer is whether such allegations, either in themselves or in connection with other averments, tend to state a defense or a counterclaim. If they do, they are not irrelevant, and ought not to be expunged. Hill v. Stansbury, 221 N.C. 339, 20 S.E.2d 308; Ederer v. Froberg, 115 Ind.App. 414, 59 N.E.2d 595; 71 C.J.S., Pleading, § 465.

Under the first subdivision of the statute embodied in G.S. § 1-137, a cause of action may be pleaded as a counterclaim in an action when it satisfies this twofold requirement:

1. The cause of action must be one existing in favor of a defendant and against a plaintiff between whom a several judgment may be had in the action.

2. The cause of action must either arise out of the contract or transaction set forth in the complaint as the foundation of the plaintiff's claim, or be connected with the subject of the action.

A several judgment may be had on a counterclaim within the purview of the statute when judgment may be rendered for the plaintiff, or all of the plaintiffs, if more than one, or for the defendant, or all of the defendants, if more than one, accordingly as the court may decide in favor of the one side or the other. Roper Lumber Co. v. Wallace, 93 N.C. 22. The term 'SUBJECT OF THE ACTION,' AS USED IN THE Statute, denotes the thing in respect to which the plaintiff's right of action is asserted, such as the wrongful act for which damage is sought, or the contract which is broken, or the threatened act which is sought to be restrained, or the property which is sought to be recovered. Smith v. Gibbons, 230 N.C. 600, 54 S.E.2d 924; Hancammon v. Carr, 229 N.C. 52, 47 S.E.2d 614; Lassiter v. Norfolk & C. Railroad Co., 136 N.C. 89, 48 S.E. 642, 1 Ann.Cas. 456.

When the allegations relating to the contract of November 3, 1916, and the other averments of the 'further defense' of the defendant are combined, they state, in substance, that the defendant owns the farm in fee simple, subject, however, to the unpaid consideration for the remainder interests amounting to $15,500 plus accrued interest from December 16, 1950, which constitutes a charge upon the farm, and which the defendant must pay in equal shares to the plaintiff and the personal representatives of the other six contracting parties, who are now dead, in order to protect his title to the premises.

These facts, if true, show that the claim of the plaintiff to the farm is not good, and for that reason are a defense to the complaint. These facts, if true, likewise constitute a cause of action in favor of the defendant and against the plaintiff, warranting a judgment declaring that the defendant owns...

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27 cases
  • Long v. City of Charlotte
    • United States
    • North Carolina Supreme Court
    • 13 Julio 1982
    ...Strickland v. Hughes, 273 N.C. 481, 160 S.E.2d 313 (1968); Manning v. Hart, 255 N.C. 368, 121 S.E.2d 721 (1961); Garrett v. Rose, 236 N.C. 299, 72 S.E.2d 843 (1952). When a complete determination of the matter cannot be had without the presence of other parties, the court must cause them to......
  • R. H. Bouligny, Inc. v. United Steelworkers of America, AFL-CIO, AFL-CIO
    • United States
    • North Carolina Supreme Court
    • 3 Mayo 1967
    ...such allegations, either in themselves or in connection with other averments, tend to state a defense or a counterclaim.' Garrett v. Rose, 236 N.C. 299, 72 S.E.2d 843. There is no prejudicial error in striking from a pleading an allegation which merely repeats or restates that which is expr......
  • Booker v. Everhart
    • United States
    • North Carolina Supreme Court
    • 24 Enero 1978
    ...without his presence as a party. Strickland v. Hughes, supra; Manning v. Hart, 255 N.C. 368, 121 S.E.2d 721 (1961); Garrett v. Rose, 236 N.C. 299, 72 S.E.2d 843 (1952). When a complete determination of the matter cannot be had without the presence of other parties, the court must cause them......
  • Dobias v. White
    • United States
    • North Carolina Supreme Court
    • 29 Enero 1954
    ...these demands meets the twofold requirement of the counterclaim statute embodied in the first subdivision of G.S. § 1-137; Garrett v. Rose, 236 N.C. 299, 72 S.E.2d 843. Let us read the allegations of the second plea in the light of these and other applicable rules. Since it entitles the pla......
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