Streator v. Streator, 145 N.C. 337 (1907)

Oct. 30, 1907 · Supreme Court of North Carolina

145 N.C. 337

MAGGIE STREATOR et al. v. W. B. STREATOR.

(Filed 30 October, 1907).

1. Pleadings — Personal Knowledge of Defendant — Answer Insufficient — Judgment.

When matters are alleged in the complaint to be in the personal knowledge of the defendant, an averment in the answer thereto that he “has no knowledge or information sufficient to form a belief as to the truthfulness thereof, and, therefore, denies the same,” is insufficient, and judgment can be rendered for want of an answer if such allegation goes to the cause of action.

2. Same — Amendment.

The refusal of the trial Judge to permit an amendment to a defective answer is not reviewable upon appeal.

3. Same — Issues.

Issues not raised by the pleadings are properly refused.

4. Same — Additional Issues — Discretion of Court.

Additional issues, proper for the full elucidation of the case, may be submitted in the discretion of the Court, and, when framed late and counsel given full opportunity to discuss them, there is no reversible error.

Civil actioN, tried before Peebles, J., and a jury, at May Term, 190?, of the Superior Court of ANSON County.

Erom' judgment for plaintiffs defendant excepted and appealed.

II. II.■ McLendon for plaintiffs.

No counsel conlra.

Clare, O. J.

Tbe complaint alleges that tbe defendant procured tbe lands to be conveyed to himself in pursuance of a parol agreement that be would bold tbe same in trust for tbe benefit of bis mother, himself .and tbe other heirs at law of bis father, and that tbe deed was executed to him upon that parol trust and condition. To this averment tbe answer sets up that tbe defendant “has no knowledge or information sufficient'to form a belief as to tbe truthfulness thereof; therefore, denies tbe same.” .This is an insufficient denial of matters alleged to be in tbe personal knowledge of tbe defendant, and tbe Court properly rendered judgment on that allegation for want of a denial. Machine Co. v. Manufacturing Co., 91 N. C., 74; Avery v. Stewart, 134 N. C., 299. Tbe point is so fully discussed and clearly stated by Walher, J., in Avery v. Stewart, 136 N. C., 432, as to render repetition here entirely unnecessary. Tbe answer being insufficient, and, in law and in fact, no answer on this point, judgment on this point for want of an answer was tbe right of tbe plaintiff (Phifer v. Insurance Co., 123 N. C., 410; Carroll v. McMillan, 133 N. C., 140), unless tbe Court, in its discretion, bad allowed an amendment. Its refusal to do so is not reviewable. Avery v. Stewart, 134 N. C., 299. Tbe learned Judge in this case acted carefully and intelligently, and refused to allow an amendment only after full inquiry and investigation.

Tbe issues tendered by tbe defendant were not raised by tbe pleadings, and were properly refused. Tbe exceptions for exclusion of evidence are without merit and need no discussion. Tbe additional issues were proper for tbe full elucidation of tbe case. Their submission after tbe argu-xnent to tbe jury on tbe other issues was in tbe discretion of tbe Court. Tbougb made late, counsel were given full opportunity to discuss them before tbe jury, and we can see no prejudice to defendant. If bis counsel declined to discuss them, it was doubtless because they bad already discussed tbe evidence fully in all its aspects.

Tbe exception to tbe charge of tbe Court “for errors therein contained,” without specifying the errors, is a “broadside exception,” and' cannot be considered. Pierce v. Railroad, 124 N. C., 99, and cases there cited.

No Error.