242 N.C. 724 | N.C. | 1955
The defendant assigns error in the judgment below denying its motion, made in apt time, to strike designated portions of the complaint.
The right to appeal from an adverse ruling in the Superior Court on a motion to strike portions of the pleadings has extended the ground of appellate jurisdiction, and frequently causes delay in the final determination of litigation. However appropriate motions to this end are sanctioned by the statute which provides: “If irrelevant or redundant matter is inserted in a pleading, it may be stricken out on motion of any person aggrieved thereby, but this motion must be made before answer or demurrer, or before an extension of time to plead is granted.” G.S. 1-153.
If the motion be made in apt time, the movant is entitled to be heard as a matter of right. But the denial of a motion to strike a pleading under this statute will not be regarded as erroneous unless the record affirmatively reveals that the matter is irrelevant or redundant and that its retention in the pleading will cause harm or injustice to the moving party. Hinson v. Britt, 232 N.C. 379, 61 S.E. 2d 185. “Allegations should be stricken only when they are clearly improper, irrelevant, immaterial or unduly repetitious.” Rhodes v. Jones, 232 N.C. 547, 61 S.E. 2d 725. It has been repeatedly held by this Court that ordinarily the test of relevancy is the right of the pleader to offer in evidence on the trial the facts to which the allegation relates (Hildebrand v. Tel. & Tel. Co., 216 N.C. 235, 4 S.E. 2d 439; Daniel v. Gardner, 240 N.C. 249, 81 S.E. 2d 660), and' that the rulings of the Superior Court upon pre
Keeping these general principles relating to the propriety of motions on the pleadings in mind, we have examined the portions of the complaint to which the defendant’s motion was directed and conclude that there was no error in the ruling complained of with respect to the motion to strike.
The defendant also excepted to the denial of its motion under the statute that plaintiff be required to make the complaint more definite. The ground for the motion is that defendant is unable to determine whether the plaintiff is bringing this action to rescind the pleaded contract for failure of consideration, or whether he is treating the contract as existing and suing for damages for breach of warranty. Hendrix v. Motors, Inc., 241 N.C. 644, 86 S.E. 2d 448.
However, it is unnecessary for us to interpret the legal meaning of the complaint in this respect, for that counsel for plaintiff stated on the argument when this appeal was heard, that the purpose of the complaint was to set out a cause of action for rescission, and that the plaintiff elected to pursue his remedy in accord therewith.
It follows that defendant’s exceptions to the rulings set out in the judgment below cannot be sustained, and that the judgment must be
Affirmed.
The foregoing opinion was prepared by Deven, Emergency Justice, while he was serving in place of Winbokne, J., who was absent on account of his physical condition. It is now adopted by the Court and ordered filed.
