Ogburn v. . Sterchi Brothers Stores, Inc. , 218 N.C. 507 ( 1940 )

This is an action to recover damages for the wrongful taking and withholding of certain personal property of the plaintiff by the defendant. The defendant's first assignment of error is "That the court erred in overruling the defendant's motion to dismiss on account of failure to post bond or comply with section 493, et seq., of the Consolidated Statutes of North Carolina."

The record discloses that the plaintiff did not give an undertaking, did not make a deposit in lieu thereof, and did not file written authority from the judge or clerk authorizing plaintiff to sue as a pauper, as by C. S., 493, required. The record further discloses that the plaintiff did not make affidavit that she was unable to comply with the preceding section as by C. S., 494, required.

The record contains a typewritten statement, which purports to have been signed by the plaintiff, to the effect that she is unable to comply with the requirements of C. S., 493, which statement is followed by an unsigned, unsealed and unauthenticated jurat. This does not constitute an affidavit as required by C. S., 494. An affidavit is "A written or printed declaration or statement of facts, made voluntarily, and confirmed by the oath or affirmation of the party making it, taken before an officer having authority to administer such oath." Black's Law Dictionary (2d Ed.), p. 46.

The clerk allowed the defendant's motion to dismiss the action for the reason that the plaintiff had not complied with the requirements of C. S., 493 or 494, but upon appeal the judge reversed the action of the clerk and disallowed the defendant's motion to dismiss. In this we are of the opinion, and so hold, there was error.

The order allowing the plaintiff to sue as a pauper is reversed, and the case is remanded to be proceeded in according to law. The judge of the Superior Court need not necessarily dismiss the plaintiff's action by reason of there being no authentication of her attempted affidavit. He may, if he shall think proper, continue the cause until she has had reasonable time to supply the defect by swearing to her affidavit before an officer duly authorized to take and certify the same. Miazza v. Calloway,74 N.C. 31.

The defendant's second assignment of error is "That the court erred in overruling the defendant's motion to strike out the subpoena and the commission granted, appointing J. H. McLain commissioner (to examine the credit manager of the defendant)." We are of the opinion, and so hold, that this assignment is well taken.

It appears from the record that the complaint has been filed and that the answer has not been filed. The purpose of the statutes, C. S., 900 and 901, allowing an examination of an adverse party, in so far as they relate to the plaintiffs, is twofold: first, to procedure information in framing the complaint, and second, to procedure evidence for trial. Since the complaint has been filed the order granting the commission to examine the adverse party was not obtained for the first purpose, and since the answer has not been filed it is obvious that the application for the order for the second purpose is premature, since no issues have yet been joined. Penderv. Mallett, 123 N.C. 57. "This proceeding (for examination of adverse party) may be permitted to the plaintiffs to procure information to frame complaint, Holt v. Warehouse Co., 116 N.C. 480; or after answer is filed the plaintiff may cause the defendant to be examined to procure evidence,Helms v. Green, 105 N.C. 251; Vann v. Lawrence, 111 N.C. 32." Jones v.Guano Co., 180 N.C. 319.

The defendant's third assignment of error is "That the court erred in overruling the defendant's motion for a Bill of Particulars." This assignment cannot be sustained, since it does not appear from the record whether the ruling of the court was made in its discretion or as a matter of law, and, the burden of showing error being upon the appellant, it is presumed that such ruling was correctly made, that is in the discretion of the court. "An application for a bill of particulars under C. S., 534, . . . is addressed to the sound discretion of the trial court, and his ruling thereon, made in the exercise of such discretion, is not reviewable on appeal, except perhaps in extreme cases." Tickle v. Hobgood, 212 N.C. 762, and cases there cited.

Error and remanded.