Poovey v. City of Hickory

• Decision Date: 06 November 1936
• Docket Number: 315.
• Citation: 188 S.E. 78,210 N.C. 630
• Parties: POOVEY v. CITY OF HICKORY.
• Court: North Carolina Supreme Court

188 S.E. 78

210 N.C. 630

POOVEY v. CITY OF HICKORY.

No. 315.

Supreme Court of North Carolina

November 6, 1936

Appeal from Superior Court, Catawba County; J. H. Clement, Judge.

Action by Mrs. Mabel Poovey against the City of Hickory. From an order that certain designated paragraphs be stricken from the complaint in accordance with defendant's motion plaintiff appeals.

Reversed.

This action was heard on defendant's motion that certain paragraphs be stricken from the complaint on the ground that the allegations contained in said paragraphs are improper irrelevant, and immaterial and are collateral matters which could not be evidentiary on the trial of the action, and, if allowed to be read in the presence of the jury, might be used to the prejudice of the rights of the defendant. The motion was in writing and was made before the time allowed by statute for answering the complaint had expired. The motion was allowed.

From the order that certain designated paragraphs be stricken from the complaint, in accordance with the motion of the defendant, the plaintiff appealed to the Supreme Court assigning errors in the order.

Chas. W. Bagby, of Hickory, and C. David Swift, of Newland, for appellant.

R. H. Shuford, of Hickory, for appellee.

CONNOR Justice.

It appears from a recital in the order from which the plaintiff has appealed to this court that the motion of the defendant was allowed by the court in its discretion. The motion was made in writing before the time allowed by statute for answering the complaint had expired. The motion was not addressed to the discretion of the court, but was made by the defendant as a matter of right. The order allowing the motion is therefore subject to review by this court on plaintiff's appeal, notwithstanding the recital therein that the motion was allowed by the court in its discretion. C.S. § 537; Tar Heel Hosiery Mill v. Hosiery Mills, 198 N.C. 596, 152 S.E. 794.

The sufficiency of the allegations of a complaint to constitute a cause of action on which the plaintiff is entitled to relief is not presented by a motion made by the defendant that certain designated allegations be stricken from the complaint, on the ground that said allegations are improper, irrelevant, and immaterial. That question can be presented only by a demurrer to the complaint, either in writing or ore tenus. C.S. § 511(6). The motion under the provisions of C.S. § 537, concedes that there are facts alleged in the complaint which are sufficient to constitute a cause of action. Only the propriety, relevancy, or materiality of the allegations sought to be stricken from the complaint are brought in question by the motion, which ought to be allowed only when the allegations are clearly improper, irrelevant, or immaterial. Ordinarily, the plaintiff has the right to state his cause of action in his complaint, as he sees fit or as he may be advised. The allegations may be admitted or denied by the defendant in his answer.

It is alleged in the complaint in this action that the plaintiff owns a tract or parcel of land situate near the corporate limits of the defendant; that a creek runs by or through plaintiff's land; that for several years raw sewage has been and is now discharged by the defendant from its sewage disposal plant into this creek; that the waters of this creek, which flow by or through plaintiff's land, are polluted by this raw sewage; and...