Williams v. Denning, 260 N.C. 539 (1963)

Nov. 20, 1963 · Supreme Court of North Carolina

260 N.C. 539

JESSE NOAH WILLIAMS and wife, ELLEN WILLIAMS, t/a SMITHFIELD LIVESTOCK EXCHANGE, INC. v. JOHN N. DENNING, C. L. DENNING and KENNETH WESTBROOK, t/a DENNING-WESTBROOK OIL COMPANY, INC.

(Filed 20 November 1963.)

1. Appeal and Error § 19—

The exceptions must be grouped in the assignments oí error. Rule 19(3).

2. Appeal and Error § 3—

An order striking allegation® contained in a pleading is not appealable ■and may be reviewed prior to trial only by certiorari. Rule 4(a) (2).

3. Judgments § 13—

Judgment by default may no,t be entered pending tbe hearing of a motion to strike on the ground 'that the motion was not verified, since a mo-rion is not a pleading within the meaning of G.S. 1-144.

4. Appeal and Error § 3—

An order allowing the filing of an amended complaint, made in the discretion of the court, is not reviewable in the absence of a showing of abuse of discretion.

Appeal by 'Corporate plaintiff from Braswell, J., June 1963 Criminal Session of Johnston.

The complaint, stripped of useless verbiage, alleges these facte: Corporate plaintiff in 1962 leased its truck to 'corporate defendant to haul gasoline; lessee was to pay for tbe use of the truck $80 per trip; it made forty-one trips for which it owed corporate plaintiff $3,280; defendant falsely /and fraudulently promised to pay the agreed rental but had failed to pay;- because of the failure to .pay, plaintiff was entitled to recover $3,280 icompensatory damages and $10,000 punitive damages; -it wais, Iby virtue of G.S. 44-1, entitled to a materialman’s lien to the extent of the unpaid rental charges on all the assets of corporate defendant. The icomplaint was verified.

Named defendants, in apt time, filed a motion to strike ten designated- portions of the complaint. The motion was not verified.- '

After defendíante filed their motion.’ to strike and more than thirty day's 'after the service of 'summons plaintiff moved for judgment by default final for the sum of $3,280, for that defendants’ motion to strike wais nlot verified.

Judge Braswell heard the motion®. He allowed defenidamits’ motion to strike each of .the ten portions of the complaint. He denied plaintiff’® motion for judgment by default final. Pie 'allowed plaintiff thirty days in which .it could file ¡an lanaenided complaint. Corporate plaintiff excepted and appealed.

E. R„ Temple for plaintiff appellant.

Shepard, Spence •& Mast by Norman C. Shepard for defendant ap-pellees.

PER CüRIAm.

Plaintiff took eleven exceptions1 — ten to the order ¡sustaining defendants’ motion to strike, one to the refusal to allow its motion for judgment ¡by default.

The exceptions are no|t grouped 'in the record as required by Rule 19(3) of the Court (254 N.C. 797). An order striking allegations contained in ¡a pleading is not appealable. The remedy, if tire order is deemed erroneous, isiby certiorari. Rule 4(a) (2) (254 N.C. 785).

Plaintiff’s pleadings are a complaint, G.S. 1-121, and a reply, G.S. 1-140. Defendants pleadings ¡are m answer and a demurrer, G.S. 1-124. A motion, is >an application for 'an order, G.S. 1-578. It is not a pleading within the meaning of G.S. 1-144. Brownfield v. South Carolina, 189 U.S. 426, 47 L. ed. 882.

The order allowing plaintiff to file an amended complaint and defendant .time thereafter to answer was made in the court’s discretion and as such is not reviewabie in the absence of manifest abuse, which is not here suggested. Osborne v. Canton, 219 N.C. 139, 13 S.E. 2d 265.

Appeal dismissed.