Long v. Love
53 S.E.2d 661
N.C.
1949
Check Treatment
WinboeNE, J.

Upon motion of any party aggrieved, aptly made, tbe court may strike out irrelevant and redundant matter appearing in a complaint. G.S. 1-153, formerly G.S. 537. Defendant proceeds under tbis authority, and challenges tbe decision of tbe court below in denying bis motion. Tbis brings into focus tbe portions of tbe complaint to wbicb objection is made.

■ In tbis connection it is provided by statute that tbe complaint must contain, among other things, “a plain and concise statement of tbe facts constituting a cause of action, without unnecessary repetition.” G.S. 1-122. Moreover, it is pertinent to note what is tbe function of a complaint. In Winders v. Hill, 141 N.C. 694, 54 S.E. 440, in opinion by Walicer, J., tbis Court has tbis to say: “Tbe function of a complaint is not tbe narration of tbe evidence, but a statement of tbe substantive and *537 constituent facts upon which, plaintiff’s claim to relief is foundec^' The bare statement of the ultimate facts is all that is required, and they áre always such as are directly put in issue. Probative facts are those much may be in controversy, but are not issuable. Facts from which the ultimate and decisive facts may be inferred are but evidence,'and therefore probative. Those from which a legal conclusion may be drawn and upon which the right of action depends are the issuable facts which are proper to be stated in a pleading. The distinction is well marked in the following passage: ‘The ultimate facts are those which the evidence upon the trial will prove, and not the evidence which will be required to prove the existence of those facts.’ Wooden v. Strew, 10 How. Pr. 48; 4 Enc. of Pl. & Pr., p. 612.” See also Revis v. Asheville, 207 N.C. 237, 176 S.E. 738; Hawkins v. Moss, 222 N.C. 95, 21 S.E. 2d 873; Truelove v. R. R., 222 N.C. 704, 24 S.E. 2d 537; Brown v. Hall, 226 N.C. 732, 40 S.E. 2d 412.

Applying the provisions of the statute, G.S. 1-173, and the principle above stated to the complaint in hand, and bearing in mind that plaintiff bases his cause of action upon an alleged willful, wanton and malicious assault and battery committed upon his person by defendant, and invokes the provisional remedy of arrest and bail, G.S. 1-410 (1), we are in accord with the ruling of the court brought into question on this appeal.

A defendant may be arrested and held to bail in a civil action, in this State, for the recovery of damages on a cause of action not arising out of contract where the action is for willful, wanton or malicious injury to person. G.S. 1-410 (1).

Thus it appears that the portions of the complaint to which objection is made relate directly to the ultimate facts, and are within the pale of proper pleading in the statement of a cause of action for recovery of damages for an alleged willful, wanton and malicious injury to person,- — ■ on which the aid of arrest and bail is invoked.

And while the record discloses that the arrest and bail was predicated upon affidavits filed, it is appropriate for plaintiff to allege in his complaint facts upon which such remedy may be sustained. Hence the judgment below is

Affirmed.