750 | N.C. | Jun 30, 1955
John M. TUCKER, F. Nat West and J. G. Barron, Trustees of Salem Lodge
No. 36 I. O. O. F.
v.
Hattie F. TRANSOU (widow), Virgil A. Transou and wife, Evie B. Transou, James H. Transou and wife, Nancy M. Transou, and Fred R. Transou and wife, Kate Todd Transou.
Supreme Court of North Carolina.
*133 J. L. Carlton and H. Bryce Parker, Winston-Salem, for petitioner.
W. S. Mitchell and Elledge & Johnson, Winston-Salem, for appellant.
DENNY, Justice.
A motion to strike allegations in a defendant's answer, as a matter of right, pursuant to the provisions of G.S. 1-153, comes too late when it is not made until the case is calendared for trial or until the jury has been selected and empaneled. Warren v. Virginia-Carolina Joint Stock Land Bank, 214 N.C. 206" court="N.C." date_filed="1938-09-28" href="https://app.midpage.ai/document/warren-v-virginia-carolina-joint-stock-land-bank-3655944?utm_source=webapp" opinion_id="3655944">214 N.C. 206, 198 S.E. 624. But when a motion to strike is not made in apt time, the court has discretionary power to allow or deny such motion, and its ruling will not be disturbed on appeal in the absence of an abuse of discretion. Parrish v. Atlantic Coast Line R. Co., 221 N.C. 292" court="N.C." date_filed="1942-05-20" href="https://app.midpage.ai/document/parrish-v--r-r-3643243?utm_source=webapp" opinion_id="3643243">221 N.C. 292, 20 S.E.2d 299. No abuse of discretion or prejudicial error has been shown on this appeal since it is not within the province of the Superior Court on appeal in such proceeding, to decide where the cartway is to be located and laid out or to determine and assess the amount of damages, if any. Garris v. Byrd, 229 N.C. 343" court="N.C." date_filed="1948-10-13" href="https://app.midpage.ai/document/garris-v--byrd-3678398?utm_source=webapp" opinion_id="3678398">229 N.C. 343, 49 S.E.2d 625.
It is true that an aggrieved party is not required to wait until a cartway is laid off and the damages assessed before appealing from an order of the Clerk of the Superior Court adjudging that a petitioner is entitled to a cartway. Triplett v. Lail, 227 N.C. 274, 41 S.E.2d 755. But, if upon appeal such order is affirmed, the location of the cartway and the assessment of damages, if any, are matters for the jury of view, subject to the right of the court to review its findings. Garris v. Byrd, supra.
The ruling of the court below is affirmed.
Affirmed.