64 S.E. 204 | N.C. | 1909
This action was brought to recover damages for the negligent failure of the defendant to deliver a telegram. The plaintiff filed his complaint 2 August, 1906, and the defendant filed its answer, which contained a general denial of the allegations of the (429) complaint, on 15 September, 1906. At a special term of the Superior Court, held in July, 1907, it appeared from the minutes, the cause was continued by consent on 16 July, 1907, but the court finds as a fact that counsel were not present at the time and that the defendant's counsel did not know of the entry until September Term, 1908. On 23 July, 1907, during the second week of the special term, the court made an order allowing the defendant to amend its answer by averring that the plaintiff had not presented his claim within sixty days after the message was filed with the company, which, by the terms of the contract between it and the plaintiff, exonerates the defendant from liability for the alleged act of negligence. The amendment to the answer was filed on 6 August, 1907. The plaintiff first learned at September Term, 1907, that the order for the amendment had been made, and that the amended answer had been filed, but did not move at that term to strike out the order or the amendment of the answer, but did move, at March Term, 1908, to strike out the amendment. The motion was continued from time to time, and heard at September Term, 1908, when the judge then presiding ordered that the amendment be stricken out. Defendant excepted and appealed. In Gwinn v. Parker,
It is unnecessary to consider the other reasons assigned by the defendant's counsel for reversing the order of the court.
Reversed. *354
(431)