Williams v. Thompson

• Decision Date: 26 February 1947
• Docket Number: 451
• Citation: Williams v. Thompson, 227 N.C. 166, 41 S.E.2d 359 (N.C. 1947)
• Parties: WILLIAMS v. THOMPSON et al.
• Court: North Carolina Supreme Court

41 S.E.2d 359

227 N.C. 166

WILLIAMS v. THOMPSON et al.

No. 451

Supreme Court of North Carolina

February 26, 1947

Special proceedings to sell land to make assets heard on motion to strike plaintiff's reply.

In his petition plaintiff alleges that the City of Raleigh'has a claim of an undetermined amount against said estate for paving assessments and taxes. ' The city, answering asserted a first lien for 1944 taxes in the total sum of $7.45, and a lien, second only to the lien for taxes, against the first tract described in the petition for street assessments in the sum of $295.71, with interest from May 16 1927, and a lien for charges for sewer connections in the amount of $24 and for water connections in the amount of $29.56, with interest from May 16, 1927.It prays (1) for judgment for said amounts, (2) that said judgment be declared a specific lien on said property, and (3) for the appointment of a commissioner to make sale.

The plaintiff, replying, pleads the tenyear statute of limitations, G.S. s 1-56, in bar of said defendant's right to recover the pleaded street assessments and sewer and water connection charges.Thereupon, said defendant moved to strike plaintiff's reply 'upon the grounds that 1.No new matter was pleaded by said defendant in its answer, and Second that no affirmative relief was prayed by the said defendant in the said answer.'

The clerk denied the motion and defendantCity of Raleigh appealed to the judge of the Superior Court.When the cause came on to be heard in the court below the judgment of the clerk was affirmed and said defendant appealed to this Court.

Murray Allen, of Raleigh, for plaintiff-appellee.

P. H Busbee and John G. Mills, Jr., both of Raleigh, for appellantCity of Raleigh.

BARNHILL Justice.

On a motion to strike the test of relevancy of a pleading is the right of the pleader to offer in evidence at the trial the facts relied upon to sustain the plea which, if established, will constitute a cause of action or a defense.And so, if the ultimate fact pleaded in a reply is not inconsistent with the cause of action alleged in the complaint and constitutes a defense, in whole or in part, to a plea for affirmative relief set up in the answer, it should not be stricken.Patterson v. Southern R. Co.,214 N.C. 38, 198 S.E. 364;Virginia Trust Co. v. Dunlop,214 N.C. 196, 198 S.E. 645;Pemberton v. City of Greensboro,203 N.C. 514, 166 S.E. 396.

The right to reply is not restricted to cases in which the defendant pleads a counterclaim.G.S. ss 1-140,1-141.If it alleges facts, upon the proof of which the court should give some relief, it is properly filed.Alamance Lumber Co. v....