Burrell v. DICKSON TRANSFER COMPANY , 244 N.C. 662 ( 1956 )

94 S.E.2d 829 (1956) 244 N.C. 662

Nancy Jane BURRELL
v.
DICKSON TRANSFER COMPANY and George Vernon Burrell.

No. 389.

Supreme Court of North Carolina.

October 31, 1956.

Fred M. Parrish, Jr., and Ingle, Rucker & Ingle, Winston-Salem, for plaintiff, appellant.

Deal, Hutchins & Minor, Winston-Salem, for defendant Dickson Transfer Company, appellee.

BOBBITT, Justice.

It appears from recitals in the judgment of Judge Phillips that the hearing before Judge Sharp on Dickson Transfer Company's demurrer ore tenus was held 31 May, 1955; that Judge Sharp then sustained said demurrer, albeit the formal order was not signed until 7 June, 1955; and that between these dates the judgment of voluntary nonsuit as to Burrell was entered. Whether Judge Sharp on 31 May, 1955, announced a positive ruling as distinguished from an intended ruling, the fact is that no order was signed until 7 June, 1955. Apart from that, had Judge Sharp on 31 May, 1955, signed a judgment sustaining the demurrer ore tenus, such judgment would have been in fieri during the term, subject to being set aside, modified or amended by her further order. Hoke v. Atlantic Greyhound Corp., 227 N.C. 374, 42 S.E.2d 407. While sustaining the demurrer, Judge Sharp allowed plaintiff to file an amended complaint. The amended complaint was filed within the time allowed. Defendant answered the amended complaint.

Defendant insists that Judge Sharp should have dismissed the action; that it was not a matter within her discretion as to whether plaintiff should have been allowed to file an amended complaint; and that this is true because the cause of action alleged in the original complaint was a defective cause of action as distinguished from a defective statement of a good cause of action.

"Where there is a defective statement of a good cause of action, the complaint is subject to amendment; and the action should not be dismissed until the time for obtaining leave to amend has expired. G.S. § 1-131. But where there is a statement of a defective cause of action, final judgment dismissing the action should be entered." Mills v. Richardson, 240 N.C. 187, 81 S.E.2d 409, 411; Teague v. Silver City Oil Co., 232 N.C. 469, 61 S.E.2d 345. The following cases disclose clear instances where the "plaintiff's supposed grievance is not actionable". Scott v. Statesville Plywood & Veneer Co., 240 N.C. 73, 77, 81 S.E.2d 146, 149; Lewis v. Farm Bureau Mut. Auto. Ins. Co., 243 N.C. 55, 89 S.E.2d 788; Small v. Morrison, 185 N.C. 577, 118 S.E. 12, 31 A.L.R. 1135.

If the original complaint was subject to amendment, the allowance of such amendment was addressed to the discretion of the trial judge. G.S. § 1-131; G.S. § 1-161; G.S. § 1-163; Hood v. Elder Motor Co., 209 N.C. 303, 183 S.E. 529; McKeel v. Latham, 203 N.C. 246, 165 S.E. 694. And where motion for leave to amend is made at term, the statutory provision as to notice of such motion does not apply. G.S. § 1-131; Harris v. Board of Education, 217 N.C. 281, 7 S.E.2d 538.

The fact is that Judge Sharp, while sustaining the demurrer ore terms, allowed plaintiff to file an amended complaint; and in so doing Judge Sharp in effect ruled that the original complaint contained a defective statement of a good cause of action. Whether it contained a defective statement of a good cause of action or a statement of a defective cause of action was a question of law. If Judge Sharp's decision thereon was incorrect, her order was erroneous. It could not be set aside for error of law by another superior court, judge at a subsequent term. Mills v. Richardson, supra;, Hoke v. Atlantic Greyhound Corp, supra. Nor will it be reviewed by this Court in the absence of exception taken thereto.

True, the judgment of Judge Phillips recites that "the plaintiff's counsel admitted in open court that George Vernon Burrell was the servant and agent of the plaintiff." However, the amended complaint does not allege that any negligence on the part of Burrell caused or concurred in causing plaintiff's injury.

The portion of Judge Phillips' judgment, to wit, "the dismissal of her suit against the said defendant was final," is erroneous, being in direct conflict with Judge Sharp's order of 7 June, 1955, which did not dismiss plaintiff's suit but on the contrary granted leave to plaintiff to file an amended complaint.

When the cause came before Judge Phillips, the relevant subsisting pleadings Were the amended complaint and the answer thereto. The original complaint had been superseded by the amended complaint. Zagier v. Zagier, 167 N.C. 616, 83 S.E. 913; Griggs v. Griggs, 213 N.C. 624, 627, 197 S.E. 165.

The conclusion reached is that the case is now pending for trial on said amended pleadings. Therefore, the judgment of Judge Phillips dismissing plaintiff's action is

Reversed.

JOHNSON, J., not sitting.