56 S.E.2d 602 | N.C. | 1949
Civil action for injunctive relief, here on former appeal. Light Co. v. Bowman,
After the opinion of this Court on the former appeal was certified down, the court below, on motion of defendants, entered an order permitting defendants to file an amendment to their answer. Plaintiff excepted. Thereupon, defendants filed the proposed amendment in which they plead certain facts by way of estoppel. The plaintiff moved (1) to strike the amendment "for that the same is not amendatory of but is inconsistent with the original Answer and Amendments thereto, and for *333
that all matters alleged in said Amendment to the Complaint are res adjudicata;" and (2) to strike certain portions of paragraphs 11, 12, and 13 thereof for that the facts alleged are immaterial, redundant, and repetitious. The motion was denied and plaintiff appealed.
The exception to the order permitting defendants to amend their answer is without merit. Whether the amendment should be allowed rested within the sound discretion of the court below. G.S 1-163; Bank v. Sturgill,
This Court will not at this time overrule the judgment of the court below in respect to particular allegations contained in the amendment. Plaintiff seeks, in effect, to have us say that the facts alleged are not sufficient to support the plea of estoppel and are therefore irrelevant and immaterial. But it is not our province to predetermine the competency of evidence or to chart the course of the trial in the court below. Parker v. Duke University,
In an appeal from an interlocutory order which does not destroy, or impair, or seriously imperil some substantial right of the appellant, unless corrected before the trial, this Court, ordinarily, will not interfere with the order entered. Privette v. Privette,
Here, if the additional averments constitute a rehash of the allegations already made, as plaintiff asserts, it is not hurt. If they form the basis of a valid defense, the court below had the right, in its discretion, to afford the defendants an opportunity to interpose the plea.
We have purposely refrained from discussing the nature, force and effect of the allegations plaintiff seeks to have stricken in order to avoid possible prejudice to either party. We will rule on the questions it seeks to raise when and if they are presented in orderly course after final judgment.
The judgment below is
Affirmed.