Pemberton v. City of Greensboro, 203 N.C. 514 (1932)

Nov. 16, 1932 · Supreme Court of North Carolina

203 N.C. 514

TOM PEMBERTON et al. v. CITY OF GREENSBORO.

(Filed 16 November, 1932.)

Appeal and Error J e — As no substantial harm has or will result to appellant from order appealed from the judgment will not be disturbed.

Where on appeal from the court’s refusal to grant a written motion to strike certain allegations from the complaint on the ground of irrelevancy, it appears that the plaintiff is to file a bill of particulars and that no substantial injury has or is likely to result to the defendant on account of the refusal of the motion and that the matter can better be determined upon the filing of the bill of particulars, the order denying defendant’s motion will not be disturbed. G. S., 537.

Appeal by defendant from Oglesby, J., at June Term, 1932, of Guilford.

Oivil 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. O. S., 537. The motion was allowed in part — the plaintiffs offering to file a bill of particulars — and the defendant appeals because his Honor “refused to strike from the complaint the irrelevant.or redundant matter set forth therein, as specified in defendant’s written motion.” There are eight specifications in the defendant’s motion.

Frazier & Frazier and Broolcs, Parker, Smith & Wharton for plaintiffs.

Andrew Joyner, Jr., and Sapp & Sapp for defendant.

Stacy, C. J.

It may be doubted whether the exception is sufficiently definite to enable us to review the different specifications, but however this may be, it is not discernible from the record that any harm has come, or is likely to come, to the defendant by reason of the court’s ruling. Hosiery Mill v. Hosiery Mill, 198 N. C., 596, 152 S. E., 794; Ellis v. Ellis, ibid., 767, 153 S. E., 449.

It is readily conceded that nothing ought to be in a complaint, or remain there over objection, which is not competent to be shown on the hearing. C. S., 506; 21 R. C. L., 452. But the matter can better be determined after the bill of particulars has been filed. S. v. Lumber Co., 199 N. C., 199, 154 S. E., 72. See, Hines v. Rocky Mount, 162 N. C., 409, 78 S. E., 510, for scope of recoverable damages.

. As no substantial right, of which the defendant can apparently complain, has presently been affected or impaired, the judgment will not be disturbed. C. S., 537; McIntosh, N. C. P. & P., 378.

Affirmed.