Vaughn, Earl W.

English

University of North Carolina School of Law

NORTH CAROLINA LAW REVIEWVolume 29 | Number 4 Article 146-1-1951Pleading -- Unnecessary Allegations in Answer --Motion to StrikeEarl W. VaughnFollow this and additional works at: http://scholarship.law.unc.edu/nclrPart of the Law CommonsThis Note is brought to you for free and open access by Carolina Law Scholarship Repository. It has been accepted for inclusion in North Carolina LawReview by an authorized editor of Carolina Law Scholarship Repository. For more information, please contact law_repository@unc.edu.Recommended CitationEarl W. Vaughn, Pleading -- Unnecessary Allegations in Answer -- Motion to Strike, 29 N.C. L. Rev. 488 (1951).Available at: http://scholarship.law.unc.edu/nclr/vol29/iss4/14NORTH CAROLINA LAW REVIEWof the relation back rule may be based. With such a repudiation ofthe relation back rule, priority, as between liens and contract liens orany combination thereof, would simply depend on the times of thefiling of notices of lien or recording of the contract liens.Furthermore, in Penland v. Red Hill Methodist Church,52 thecourt held, in deciding a venue question, that as far as an interest inreal property is concerned there is no essential difference between astatutory lien and a contract lien.52 Hence, there is little reason whythe recordation of statutory liens and the recordation of contract liensshould not be given the same effect. This would make the rules easyof application and produce uniformity in lien law generally.WILLIAm H. BonBirr, JR.Pleading-Unnecessary Allegations in Answer-Motion to StrikePlaintiff instituted an action against defendant administrator to com-pel defendant to pay plaintiff, as sole distributee, assets of the estate ofone Arsemus Chandler. Plaintiff alleged that he was born of the mar-riage between Arsemus Chandler and Della Fender Hensley and is theson and only heir of Arsemus Chandler. The defendant specificallydenied this allegation and for further answer and defense set outmatter to the effect that plaintiff was born to Della Fender more thantwo years after she and Arsemus Chandler separated and that plaintiffwas not the son of Arsemus Chandler. In apt time plaintiff moved tostrike this further answer and defense. The motion was overruled. Inan opinion by Justice Winborne the North Carolina Supreme Courtreversed saying;"The plea of denial controverts and raises an issue of fact between theparties as to each material allegation denied, and forces the plaintiff toprove them.. . . averments of evidence which defendant contends sustainhis denial of the controverted facts are irrelevant as pleading and haveno place in the answer .... 1This decision seems inconsistent with an earlier case where theallegation sought to be stricken was but an, elaboration of the denialpreviously made. The trial judge refused to strike the unnecessaryallegation. The Supreme Court affirmed, saying that since under thedenial the evidence would be competent with or without the explanatory-2226 N. C. 171, 37 S. E. 2d 177 (1946)."'And we see no essential difference in so far as an interest in real propertyis involved, in an action to foreclose a mortgage, a lien created by contract, andin one to foreclose a specific statutory lien on real property." Penland v,Red Hill Methodist Church, 226 N. C. 171, 173, 37 S. E. 2d 177 (1946).' Chandler v. Mashburn, 233 N. C. 277, 63 S. E. 2d 553 (1951).[Vol. 29NOTES AND COMMENTSallegation, it was doubtful whether the ruling affected such a sub-stantial right as to be appealable.2In the present case counsel for plaintiff urged that the matter wasirrelevant; that his client would be prejudiced3 by its retention in thepleadings; and that therefore the case fell within the "irrelevant andprejudicial" rule of Hinson v. Britt.4 Quaere, however, as to whetherthe court considered the Hinson case controlling in this case. 5The court's reference to the facts alleged therein as irrelevant doesnot mean that they are irrelevant to the issue at hand, for the oppositeis clearly true. The allegations are irrelevant only in the sense thatthey are unnecessary. Nor did the court indicate that the plaintiffwould be injured by the retention of the matter in the pleadings(unless it be assumed that the reversal of an interlocutory ruling neces-sarily implies prejudice). 6Thus it appears that for the first time the court has squarely heldthat it is improper pleading to allege affirmatively matter which couldbe presented in evidence under a general denial.The rule appears to be a sound one and if followed it will force a'Teasly v. Teasly, 205 N. C. 604, 172 S. E. 197 (1937). See also, VirginiaTrust Company v. Dunlop, 214 N. C. 196, 198 S. E. 645 (1938).'The possibility of prejudice cannot successfully be advanced as a groundfor the motion to strike. Parker v. Duke University, 230 N. C. 656, 657, 55 S. E.2d 189, 190 (1949). Tar Heel Hosiery Mill v. Durham Hosiery Mills, 189 N. C.596, 152 S. E. 794 (1930). See Brandis and Bumgarner, The Motion to StrikePleadings in North Carolha, 29 N. C. L. Rv. 3 (1950). After the motion hasbeen denied on some proper ground, the trial court will be reversed only on ashowing of prejudice. Hinson v. Britt, 232 N. C. 379, 61 S. E. 2d 185 (1950).In passing it is interesting to note that most of the few cases where the trialjudge has been reversed for failure to strike involved allegations of matter thatclearly would have been incompetent as evidence. Parlier v. Drum 231 N. C.155, 56 S. E. 2d 383 (1949) ; Parish v. Atlantic Coast Line I. R. 221 N. C. 292,20 S. E. 2d 299 (1942) ; Sayles v. Loftis, 217 N. C. 674, 9 S. E. 2d 393 (1940);Duke v. Crippled Children's Commission, 214 N. C. 570, 199 S. E. 918 (1938).' 232 N. C. 379, 61 S. E. 2d 185 (1950). "The court does not correct errorsof the Superior Court unless such errors prejudicially affect the substantial rightsof the party appealing. Hence the denying or overruling of a motion to strikematter from a pleading under the provisions of G. S. 1-153 is not ground forreversal unless the record affirmatively reveals these two things: (1) That thematter is irrelevant or redundant; and (2) that its retention in the pleading willcause harm or injustice to the moving party." Followed in Buchanan v. Dicker-son, Inc., 232 N. C. 421, 61 S. E. 2d 187 (1950).'The court makes no reference to the Hinson case or to the earlier caseswhere it has attempted to resolve what matter is irrelevant as pleading and whenit will be stricken. For an exhaustive discussion of these cases see, Brandis andBumgarner, The Motion to Strike Pleadings in North Carolina, 29 N. C. L. RPFv.3 (1950)."In an appeal from an interlocutory order which does not destroy, impair,or seriously imperil some substantial right of appellant, unless corrected beforethe trial, this court, ordinarily, will not interfere with the order entered."Light Co. v. Bowman, 231 N. C. 332, 56 S. E. 2d 602 (1949).1951]490 NORTH CAROLINA LAW REVIEW [Vol.29decided change in the widely prevalent practice among attorneys ofdenying an allegation and then setting out at great length a differingversion of the facts. As a practical matter, it is unlikely that manyattorneys will bother to object to this type of pleading so long as thematter contained in the allegation is not really harmful to their clients.The old forms will probably continue to be used and tolerated to a greatextent.EARL W. VAUGHN.

Pleading -- Unnecessary Allegations in Answer -- Motion to Strike

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Pleading -- Unnecessary Allegations in Answer -- Motion to Strike

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