The defendants contend: “(1) Did the court err in striking as irrelevant and immaterial the allegations in the answers of the defendants, as shown by the court’s order?” "We think not.
1ST. C. Code, 1935 (Michie), section 537, is as follows: “If irrelevant or redundant matter is inserted in a pleading, it may be stricken out on motion of any person aggrieved thereby, hut this motion must he made before answer or demurrer, or before an extension of time to plead is granted. When the allegations of a pleading are so indefinite or uncertain that the precise nature of the charge or defense is not apparent, the court may require the pleading to be made definite and certain by amendment.”
In Revis v. Asheville, 207 N. C., 237 (240), speaking to the subject, it is written: “ ‘If irrevelant or redundant matter is inserted in a pleading, it may be stricken out on motion of any person aggrieved thereby . . .’ C. S., sec. 537. Under this statute the Superior Court is authorized in the exercise of its discretion to strike from a pleading any allegations of purely evidential and probative facts. Commissioners v. Piercy, 72 N. C., 181. In McIntosh ET. O. Prac. and Proc., we find the following: ‘Allegations which set forth evidential . . . matters . . . would be considered irrelevant, . . . and excessive fullness of detail . . . would be redundant.’ Sec. 371, p. 378; and further : ‘The material, essential, or ultimate facts upon which the right of action is based should be stated, and not collateral or evidential facts, which are only to be used to establish the ultimate facts. The plaintiff is to obtain relief only according to the allegations in his complaint, and therefore he should allege all of the material facts, and not the evidence to prove them. . . .’ Sec. 379, p. 388.” Pemberton v. Greensboro, 205 N. C., 599 (600); Woodley v. Combs, 210 N. C., 482 (485); Poovey v. Hickory, 210 N. C., 630.
Under section 537, supra, ordinarily irrelevant or redundant matter inserted in the pleading may be stricken out on motion of any person aggrieved thereby, but this is largely in the sound discretion of the court below.
In the present cause the defendants, no doubt aggrieved at the fact that unfortunately they have, been unable to meet their obligations to plaintiff — the plaintiff pressing them for payment — the defendants in their allegations “threw a little mud” at their antagonists, as noted from the language used. The court below ordered them stricken from the pleadings, and in this we can see no prejudicial error to defendants.
*377The defendants contend: “(2) Did the court err in sustaining plaintiff’s demurrer to the counterclaim set up by the defendant Ered I. Smathers?” We think not.
The defendant Ered I. Smathers, by way of counterclaim, alleged “That the appointment of said receiver was illegal and void, and was a gross abuse of the civil process of the court, all of which the plaintiff and its attorney well knew, or should have known. That the appointment of said receiver caused the plaintiff great embarrassment and distress, and otherwise injured him in his character, reputation, and financial standing, all to his damages in the sum of $25,000.” This and prior allegations, no doubt, means an abuse of process.
Elack’s Law Dictionary (3rd ed.), p. 18, defines “Abuse of Process”— “There is said to be an abuse of process when an adversary, through the malicious and unfounded use of some regular legal proceeding, obtains some advantage over his opponent. Wharton. A malicious abuse of legal process occurs where the party employs it for some unlawful object not the purpose which it is intended by the law to effect; in other words, a perversion of it.”
This counterclaim is a tort action. We do not think, under our most liberal and elastic code practice, it can be set up in the present action. If defendant has a cause of action in tort for abuse of process, he must bring a separate action. Weiner v. Style Shop, 210 N. C., 705, and cases cited.
Eor the reasons given, the judgment of the court below is
Affirmed.