Johnson v. Johnson, 7223DC47
| Court | Court of Appeal of North Carolina (US) |
| Citation | 14 N.C.App. 40,187 S.E.2d 420 |
| Docket Number | No. 7223DC47,7223DC47 |
| Parties | Robert D. JOHNSON v. Mary E. JOHNSON. |
| Decision Date | 29 March 1972 |
Page 420
v.
Mary E. JOHNSON.
Whicker, Vannoy & Moore, by J. Gary Vannoy, North Wilkesboro, for plaintiff appellee.
McElwee & Hall, by John E. Hall, North Wilkesboro, for defendant appellant.
[14 N.C.App. 42] CAMPBELL, Judge.
The defendant first assigns as error the admission of evidence as to the drinking problem of defendant as a defense against the defendant's counterclaim and the denial of defendant's motion for a continuance after this evidence was admitted.
Defendant contends that plaintiff was required to file a reply to her counterclaim and that in the absence of a reply it was error for the trial court to admit evidence of a defense to the counterclaim. She further contends that it was error for the trial court to deny defendant's motion for a continuance after the plaintiff's evidence was admitted.
Stated concisely, the question is whether it was error to admit plaintiff's evidence, allow him to file a reply conforming the pleadings to the evidence and deny defendant's motion for a continuance.
Although the North Carolina Rules differ somewhat from the Federal Rules of Civil Procedure, the Federal Rules are one of the sources of the North Carolina Rules; and decisions under them are pertinent for guidance and enlightenment as we develop the philosophy of the new rules. Sutton v. Duke, 277 N.C. 94, 176 S.E.2d 161 (1970). The canon of interpretation of the Federal Rules is one of liberality, and it has been held in numerous decisions that the general policy of the Rules is to disregard technicalities and form and determine the rights of litigants on the merits. Fakouri v. Cadais, 147 F.2d 667 (5 Cir., 1945); Mitchell v. White Consolidated, 177 F.2d 500 (7 Cir., 1949).
The North Carolina Rules provide that a reply must be filed to any counterclaim denominated as such, G.S. § 1A--1, Rule 7(a), and averments to which a responsive pleading is required are deemed to be admitted when not denied. G.S. § 1A--1, Rule 8(d).
The North Carolina Supreme Court has, however, held that the Superior Courts possess an inherent discretionary power to amend pleadings or allow them to be filed at any time unless prohibited by some statute or unless vested rights are interfered with. Gilchrist v. Kitchen, 86 N.C. 20 (1882); Cantwell v. Herring, 127 N.C. 81, 37 S.E. 140 (1900); Wheeler v. Wheeler, 239 N.C. 646, 80 S.E.2d 755 (1954)....
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...and instead proceed directly to the merits of an action, unlike the hoary system of pleading the rules replaced. See Johnson v. Johnson, 14 N.C.App. 40, 187 S.E.2d 420 (1972). Because I believe the majority elevates form over substance, I respectfully...
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...behind the Rules of Civil Procedure is to resolve controversies on the merits, not on technicalities of pleading. Johnson v. Johnson, 14 N.C.App. 40, 187 S.E.2d 420 (1972). This is especially true in light of the liberal pleading now allowed, the relatively free availability of amendments, ......
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