Thе defendant first assigns as error the admission of evidence as to the drinking problem of defendant as a defense against the defendant’s counterclaim and the denial of defendant’s motion for a сontinuance after this evidence was admitted.
Defendant contends that plaintiff was required to file a reply to her counterclaim and that in the absence of a reply it was error for the triаl court to admit evidence of a defense to the counterclaim. She further contends that it wаs error for the trial court to deny defendant’s motion for a continuance after the plaintiff’s еvidence was admitted.
Stated concisely, the question is whether it was error to admit plaintiff’s evidenсe, allow him to file a reply conforming the pleadings to the evidence and deny defendant’s mоtion for a continuance.
Although the North Carolina Rules differ somewhat from the Federal Rules of Civil Procedure, the Federal Rules are one of the sources of the North Carolina Rules; and deсisions under them are pertinent for guidance and enlightenment as we develop the philosophy of the new rules.
Sutton v. Duke,
The North Carolina Rules provide that a reply must be filеd to any counterclaim denominated as such, G.S. 1A-1, Rule 7 (a), and averments to which a responsive рleading is required are deemed to be admitted when not denied. G.S. 1A-1, Rule 8(d).
The North Carolina Supreme Cоurt has, however, held that the Superior Courts possess an inherent discretionary power to amеnd pleadings or allow them to be filed at any time unless prohibited by some statute or unless vested rights arе interfered with.
Gilchrist v. Kitchen,
We do not hold that the filing of a reply is an amendment to the pleadings, but it should be noted that Rule 15 permits amendment of pleadings to conform to the evidence even where the evidence is admitted over objection. While this Rule does not control in the case before us, it does reflect the general pоlicy of proceeding to the merits of an action.
In the case before us we hold that the trial court was within its discretion in admitting plaintiff’s evidence and allowing plaintiff to file a reply.
The defendаnt argues that it was error for the trial court to deny her motion for a continuance. The granting of a continuance is within the discretion of the trial court and its exercise will not be reviewed in the absеnce of manifest abuse of discretion.
O’Brien v. O’Brien,
Defendant also contends that the trial court’s findings of fact are not supported by the evidence and that the judgment is not supported by the findings of fact.
We have examined the record carefully. It is our opinion that the evidence fully supports the trial judge’s findings оf fact. The findings of fact are sufficient to support the judgment. G.S. 1A-1, Rule 52.
The defendant raises two final questions on this appeal: 1. Did the trial court err by failing to make conclusions of law? 2. Did the trial court’s refusal to grant defendant a continuance until the plaintiff’s reply was filed deny the defendant the right to trial by jury?
These exceptions have not been set forth in the record on appeal and will not be considered by this Court. Rules 21 and 19 (c), Rules of Practice in the Court of Appeals of North Carolina.
It should bе noted that the trial court did make conclusions of law. They were omitted from the original recоrd on appeal, but have been included in an addendum to the record.
On the jury trial question, it should be noted that defendant did not request a jury trial in her answer and counterclaim or at the time she moved for a continuance. The defendant has, in fact, argued that her reason for requesting the continuance was to meet alleged surprise, not to demand a jury trial.
We have carefully reviewed the record in this case and find
No error.