Scott v. . Harrison , 217 N.C. 319 ( 1940 )

Winborne, J.

From the facts set forth on this appeal, motions of defendant to strike from the record the proposed amended complaint of 2 May, 1939, and to dismiss the actions should have been granted.

When on the former appeal the judgment of the Superior Court overruling demurrer to complaint was reversed, the provisions of the statute, C. S., 515, as amended, were open to plaintiff to move to be allowed to amend her complaint. Williams v. Williams, 190 N. C., 478, 130 S. E., 113; Morris v. Cleve, 197 N. C., 253, 148 S. E., 253; McKeel v. Latham, 202 N. C., 318, 162 S. E., 747; White v. Charlotte, 207 N. C., 721, 178 S. E., 219; Oliver v. Hood, Comr., 209 N. C., 291, 183 S. E., 657; Bank v. Gahagan, 210 N. C., 464, 187 S. E., 580.

Under C. S., 515, as amended the plaintiff, upon notice of three days and within ten days after the opinion of the Supreme Court was received by the clerk of the Superior Court, could have made motion to amend. If the motion be not granted, judgment shall be entered dismissing the action. C. S., 515.

Plaintiff failed to proceed under said statute. On the other hand, she elected • to act upon the conclusion that the statement in the former opinion with regard to plaintiff being given reasonable time to amend her complaint is a self-executing order. Indeed, in rendering the judgment below it appears that the court was actuated by the same impression. However, a reading of the sentence quoted from that opinion in connection with that which immediately precedes, the meaning is not in doubt. "When so read, it is clear that the opinion merely indicated to plaintiff that the way was still open to her to amend her complaint, if she should so desire. Moreover, recurring to record on former appeal it appears that plaintiff made no motion in this Court to be allowed to amend. That question was not then under consideration.

For a decision on this appeal, it is unnecessary to consider other questions of law raised by the appellant.

The judgment below is

Reversed.