Hood, Comr. of Banks v. . Motor Co. , 209 N.C. 303 ( 1936 )

DEVIN, J., took no part in the consideration or decision of this case. Civil action to recover on promissory note.

Defendants denied liability and set up counterclaim for usury in excess of the note sued upon, but omitted to allege that defendants had presented their claim to the liquidating agent, or Commissioner of Banks, and same had been rejected as required by C. S., 218 (c), subsections 10 and 11.

Demurrer ore tenus interposed to counterclaim. Demurrer sustained with privilege to amend. Plaintiff excepts.

Counterclaim amended. Demurrer ore tenus to counterclaim as amended; overruled; exception.

Plaintiff appeals, assigning errors. Whether the defendants should have been allowed to amend their counterclaim, after demurrer sustained, was a matter addressed to the sound discretion of the trial court, and is not reviewable on appeal. C. S., 515;McKeel v. Latham, 203 N.C. 246, 165 S.E. 694; Morris v. Cleve,194 N.C. 202, 139 S.E. 230.

There was no error in overruling the demurrer to the counterclaim as amended. Griffin v. Bank, 205 N.C. 253, 171 S.E. 71. Indeed, it might well have been disregarded (C. S., 512), or treated as a motion to dismiss (Elam v. Barnes, 110 N.C. 73, 14 S.E. 621), from the refusal of which no appeal lies. Seawell v. Cole, 194 N.C. 546, 140 S.E. 85; Plemmons v.Improvement Co., 108 N.C. 614, 13 S.E. 188.

Affirmed.

DEVIN, J., took no part in the consideration or decision of this case.