Hildebrand v. Southern Bell Tel. & Tel. Co, 116.
| Decision Date | 27 September 1940 |
| Docket Number | No. 116.,116. |
| Citation | 4 S.E.2d 439,216 N.C. 235 |
| Court | North Carolina Supreme Court |
| Parties | HILDEBRAND. v. SOUTHERN BELL TELEPHONE & TELEGRAPH CO. |
Appeal from Superior Court, Buncombe County; J. W. Pless, Jr., Judge.
Action for damages for trespass by Eleanor G. Hildebrand against the Southern Bell Telephone & Telegraph Company. From a judgment of the superior court sustaining an order of county court striking out certain sections of defendant's answer and defense and in refusing to strike out certain portions of plaintiff's reply, defendant appeals.
Modified and, as modified, affirmed.
J. G. Merrimon, of Asheville, for appellant.
Sanford W. Brown and J. W. Haynes, both of Asheville, for appellee.
The only questions presented by the appeal relate to the rulings of the court below on motions to strike certain allegations from the pleadings. Motions were made originally in the General County Court of Buncombe County, where the cause was instituted, to strike certain allegations from the defendant's further answer and defense, and to strike certain allegations from plaintiff's reply. By appeal these motions were heard by the Judge of the Superior Court, and the defendant appellant now assigns as error the ruling of the Superior Court in sustaining the County Court's order striking out the third and fourth sections of the defendant's further answer and defense, and in refusing to strike out certain portions of the plaintiff's reply.
Without undertaking here to quote the offending allegations, it may be said briefly that the plaintiff's action is to recover damages for trespass, upon the ground that an additional burden has been imposed upon plaintiff's land abutting on a highway by the erection of defendant's poles and wires along the highway in front of plaintiff's land. The defendant, among other defenses, quotes C.S. § 1695, and sets out at length allegations raising the defense that it is relieved of any liability by the statute as well as by regulations of the State Highway Commission.
This court has said that it would not undertake to chart the course of the trial in deciding motions to strike allegations from pleadings (Pemberton v. Greensboro, 205 N.C. 599, 172 S.E. 196), and that ordinarily the test of relevancy of a pleading was the right of the pleader to offer evidence of facts to which the allegations relate. Virginia Trust Co. v. Dunlop, 214 N.C. 196, 198 S.E. 645. However, without intimating an opinion upon the sufficiency as a defense of...
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...Singleton v. Haywood Elec. Membership Corp., 357 N.C. 623, 628, 588 S.E.2d 871, 874 (2003); Hildebrand v. S. Bell Tel. & Tel. Co., 216 N.C. 235, 235, 4 S.E.2d 439, 439 (1939); CDC Pineville, LLC v. UDRT of N.C., LLC., 174 N.C. App. 644, 652, 622 S.E.2d 512, 518 (2005). As for Shinaberry's t......
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...defense." Singleton v. Haywood Elec. Membership Corp., 357 N.C. 623, 628, 588 S.E.2d 871, 874 (2003) ; Hildebrand v. S. Bell Tel. & Tel. Co., 216 N.C. 235, 235, 4 S.E.2d 439, 439 (1939) ; CPC Pineville, LLC v. UDRT of N.C., LLC., 174 N.C. App. 644, 652, 622 S.E.2d 512, 518 (2005).Defendants......
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Hildebrand v. Southern Bell Tel-ephone & Tel. Co, 101.
...Telegraph Company to restrain a trespass and recover damages therefor. From the judgment, both parties appeal. Affirmed. See, also, 216 N.C. 235, 4 S.E.2d 439. Civil action instituted in the General County Court of Buncombe County to restrain the defendant from trespassing upon lands of the......
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Cdc Pineville v. Udrt of North Carolina
...v. Haywood Elec. Membership Corp., 357 N.C. 623, 628, 588 S.E.2d 871, 874 (2003) (citing Hildebrand v. Southern Bell Tel. & Telegraph Co., 216 N.C. 235, 236, 4 S.E.2d 439, 439 (1939)). In the instant case, the trial court concluded as a matter of law that defendant failed to establish that ......