Pemberton v. City of Greensboro

• Decision Date: 10 January 1934
• Docket Number: 506.
• Citation: 172 S.E. 196,205 N.C. 599
• Parties: PEMBERTON et al. v. CITY OF GREENSBORO.
• Court: North Carolina Supreme Court

172 S.E. 196

205 N.C. 599

PEMBERTON et al. v. CITY OF GREENSBORO.

No. 506.

Supreme Court of North Carolina

January 10, 1934

Appeal from Superior Court, Guilford County; Sink, Judge.

Action by Tom Pemberton and others against the City of Greensboro. From an order denying its motion to require plaintiffs to file an amended complaint and allege separately each separate cause of action relied upon, and to strike out paragraph three of the complaint, and to strike out certain portions of the bill of particulars, defendant appeals.

Affirmed.

Failure of court, on motion, to strike out specifications in bill of particulars, does not authorize proving specifications in their entirety.

Civil action to recover compensation for the partial taking of plaintiffs' lands, or damages for an alleged nuisance arising out of the construction and maintenance of a sewerage disposal plant.

The complaint alleges several elements of damage, a number of which the defendant asked to have stricken out as irrelevant and immaterial. C. S. § 537. The motion was allowed in part and the plaintiffs required to file a bill of particulars. From this ruling, the defendant appealed because the court "refused to strike from the complaint the irrelevant or redundant matter set forth therein." The ruling was not disturbed on appeal. 203 N.C. 514, 166 S.E. 396.

Thereafter the plaintiffs filed their bill of particulars, and the defendant again lodged its motion to require the plaintiffs:

First to file an amended complaint and allege separately each separate cause of action relied upon;

Second to strike out paragraph 3 of the complaint;

Third to strike out certain portions of the bill of particulars.

Motion denied, and the defendant again appeals.

Andrew Joyner, Jr., and Sapp & Sapp, all of Greensboro, for appellant.

Smith, Wharton & Hudgins and Frazier & Frazier, all of Greensboro, for appellees.

STACY Chief Justice.

It is not perceived that any harm has come to the defendant from the court's ruling, or that any injury is likely to result therefrom. Doubtless the plaintiffs made their specifications as broad as they could, because they were aware that, in filing a bill of particulars, they would be restricted in their proof "to the items therein set down." Gruber v. Ewbanks, 199 N.C. 335, 154 S.E. 318; Ham v. Norwood, 196 N.C. 762, 147 S.E. 291; Gore v. Wilmington, 194 N.C. 350, 140 S.E. 71; State v. Wadford, 194 N.C. 336, 139 S.E. 608; State v. Lea, 203 N.C. 13, 164 S.E. 737.

But considering the several grounds of the motion in the order named:

First. As we understand it, but a single cause of action is set out in the complaint; hence the first prayer of the motion was properly denied. It is true, several elements of damages are alleged; but this does not constitute as many separate and distinct causes of action. C. S. § 506; rule 20, § 2, Rules of Practice, 200 N.C. 826.

Second. The motion to strike out paragraph 3 of the complaint was allowed in part and presented on the first appeal. 203 N.C. 514, 166 S.E. 396.

Third. In so far as the order deals with the bill of particulars, it may be doubted whether it is appealable. C. S. § 534; Temple v. Western Union Telegraph Co., 205 N.C. 441, 171 S.E. 630; Townsend v. Williams, 117 N.C. 330, 23 S.E. 461. Compare Ellis v. Ellis, 198 N.C. 767, 153 S.E. 449.

The...