Mill v. Mills, 332.

• Citation: 152 S.E. 794
• Decision Date: 16 April 1930
• Docket Number: No. 332.,332.
• Court: United States State Supreme Court of North Carolina
• Parties: TAR HEEL HOSIERY MILL . v. DURHAM HOSIERY MILLS.

152 S.E. 794

TAR HEEL HOSIERY MILL .

v.DURHAM HOSIERY MILLS.

No. 332.

Supreme Court of North Carolina.

April 16, 1930.

Defendant moved to strike certain allegations from the complaint on the groundthat they were irrelevant and immaterial, that the reading of such allegations in jury's presence would be prejudicial, and that the presence of such allegations would render admissible evidence not pertinent to issues.

Appeal from Superior Court, Durham County; Cranmer, Judge.

Action by the Tar Heel Hosiery Mill against the Durham Hosiery Mills. From an order denying defendant's motion to strike certain allegations from the complaint, defendant appeals.

Modified and affirmed.

This action was heard on defendant's motion to strike certain allegations from the complaint on the ground (1) that said allegations are irrelevant and immaterial to the cause of action alleged in the complaint, (2) that the reading of said irrelevant and immaterial allegations at the trial in the presence of the jury would be highly prejudicial to defendant, and (3) that the presence of said allegations in the complaint will render admissible at the trial evidence not pertinent to the issues which will be determinative of the rights and liabilities of the parties to this action.

From the order of the court denying its motion, defendant appealed to the Supreme Court.

Wm. W. Sledge and Jones Fuller, both of Durham, and Brooks, Parker, Smith & Wharton, of Greensboro, for appellant.

Brawley & Gantt, of Durham, for appellee.

CONNOR, J.

Summons was issued and complaint filed in this action on September 25, 1929. Before the time allowed by law for the filing of a demurrer or of an answer to the complaint had expired, the defendant moved the court to strike certain allegations from the complaint on the ground: (1) That said allegations are irrelevant and immaterial to the cause of action alleged in the complaint; the defendant; and (3) that the presence of said allegations in the complaint would render admissible at the trial evidence not pertinent to the issues which will be determinative of the rights and lia bilities of the parties to this action. The motion was in writing and was made in apt time. C. S. § 537.

The first question presented for consideration by this court is whether defendant's appeal from the order denying its motion is premature.

It has been held by this court that a motion by defendant that plaintiff be required by amendment to make certain allegations of his complaint more definite, when the motion was made after demurrer or answer filed, is addressed to the discretion of the court, and that its action on the motion is not ordinarily reviewable by this court on appeal. Hensley v. McDowell Furniture Co., 164 N. C. 148, 80 S. E. 154. This principle is applicable to a motion to strike from the complaint matter which is irrelevant or redundant. Where such motion is made after the defendant has filed a demurrer, or an answer to the complaint, it is addressed to the discretion of the court. No appeal lies from the order of the court, allowing or denying the motion. An exception to the order will be considered by this court only on an appeal from the final judgment in the action. Where, however, the motion has been made in apt time and in accordance with the provisions of C. S. § 537, it is not addressed to the discretion of the court, but is made as a matter of right. The order of the court, whether allowing or denying the motion, in such case, is subject to an appeal to this court. An appeal from the order, where appellant has duly excepted thereto, will be heard by this court. It will not be dismissed, but will be considered and decided on its merits. In the instant case, the order having been made on a motion made in apt time, and in accordance with the provisions of the statute, the appeal...