Williams v. Denning, 260 N.C. 540 (1963)

Nov. 20, 1963 · Supreme Court of North Carolina

260 N.C. 540

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

(Filed 20 November 1963.)

1. Appeal and Error § 4—

Where an action is entitled named individuals “t/a” a named corporation, the corporation cannot be the party aggrieved by an order striking ■Hie names of the individuals and the letters “t/a” from the captions of ■the summons and complaint and -the references to said individuals from the complaint.

2. Same—

An 'Order striking allegations from (the complaint is not immediately reviawable except ¡by certiorari. Rule 4(a) (2).

3. Judgments § 13—

A judgment by default final is not apposite pending the hearing of a motion .to strike.

4. Appeal and Error § 19—

■Where no assignment of error appears in the record, the appeal is subject to dismissal. Rule 19(3).

Appeal by plaintiff Southland Livestock, line., from. ian oirder entered June 27, 1963, 'ait Smiithñeld, Niortih Carolina, by Braswell, J., the superior count judge 'then presiding over the courts of the Eleventh Judicial District. From Johnston.

Tlie complaint alleges that “the plaintiff corporation” placed an order with “the defendant corporation” for 800 gallon© of diesel fuel to be delivered by ©aid defendant and placed in one of the diesel fuel tantos of said plaintiff at its place of business in Smithfield, N. C.; that said defendant negligently ¡delivered and placed -in a diesel fuel tank of ■plaintiff 800 gallons of 'high test fuel; and that the use of said high test fuel by said plaintiff caused it to suffer damages, in particular© alleged.

Defendants in apt time filed a motion to strike. Plaintiffs countered with a motion for judgment by default final. The hearing was on these .motions and on ¡demurrer ore terms -to .the ¡complaint. The count’s order 'allowed the motion to ©trike, -denied the motion for judgment by default final and overruled the demurrer ore terms. It allowed “plaintiff” thirty day© to file an .amended complaint if it so- desired. The “plaintiff,” obviously “the plaintiff corporation,” filed exceptions to said ¡order and gave notice of appeal.

E. B. Temple for plaintiff appellant.

Shepard, Spence & Mast for defendant appellees.

Per Curiam.

Appellant is not -a “party aggrieved” and had nio light of appeal from portions of the order striking the names of the individuals ¡and the letters “t/a” from the -captions of the summons and complaint ’and the references to said individuals from the 'complaint. Suffice to ©ay, the matter so stricken was not germane to the only cause ¡of action the complaint purports to allege, namely, a cause of action by “the plaintiff corporation” against “the defendant corporation.”

As to portions of said order striking allegations relating to the alleged .cause of action 'by “the plaintiff corporation” against “the defendant .corporation,” appellant did not apply to this Court for a writ of certiorari .and .its purported .appeal must 'be dismissed for failure to comply with our Rule 4(a)(2), Rules of Practice in the Supreme Court, 254 N.C. 783, 785.

The motion .to strike was filed in apt time. Plence, there was no merit in appellant’s motion for judgment by default final and no right of appeal from the court's denial thereof.

In addition to the foregoing, no assignments of error appear in the record filed in this Court. Hence, appellant’s purported appeal is subject to 'dismissal for failure toi comply with our Rule 19(3), Rules of Practice in the Supreme Court, 254 N.C. 783, 797.

Appeal dismissed.