Cecil v. HIGH POINT, THOMASVILLE & DENTON RAILROAD

147 S.E.2d 223 (1966) 266 N.C. 728

Raymond CECIL, Administrator of the Estate of Larry Stephen Cecil,
v.
HIGH POINT, THOMASVILLE AND DENTON RAILROAD.

No. 686.

Supreme Court of North Carolina.

March 23, 1966.

Plaintiff excepted and appealed.

Schoch, Schoch & Schoch, High Point, for plaintiff appellant.

Lovelace & Hardin, High Point, for defendant appellee.

BOBBITT, Justice.

Each paragraph of defendant's motion to strike is directed to a specific portion of the complaint; and the court's order, in each of seven paragraphs, strikes a specific portion of the complaint. Plaintiff's purported appeal from the order must be dismissed for failure to comply with our Rule 4(a) (2). Rules of Practice in the Supreme Court, 254 N.C. 785; Williams v. Denning, 260 N.C. 540, 133 S.E.2d 148.

In the decisions on which plaintiff bases his contention that Rule 4(a) (2) does not apply, the motion was to strike a pleading in its entirety for failure to state a cause of action or defense, such as a motion to strike in its entirety a further answer and defense, Jewell v. Price, 259 N.C. 345, 348, 130 S.E.2d 668, and cases cited, or a plea in bar, Housing Authority v. Wooten, 257 N.C. 358, 363, 126 S.E.2d 101, or a "Further Amendment to the Prior Amended Complaint and Amendment to Amended Complaint," Johnson v. Johnson, 259 N.C. 430, 437, 130 S.E.2d 876, 882, or a cross action for contribution, Etheridge v. Carolina Power & Light Co., 249 N.C. 367, 106 S.E.2d 560. Such a motion to strike, in substance a demurrer, admits for the purpose of the hearing thereon the truth of the factual allegations of the challenged pleading.

Here, plaintiff did not demur to the complaint or move to strike it in its entirety. As indicated, it moved to strike each of several specific portions. Its motion to strike does not admit the truth of any of plaintiff's allegations for the purpose of the hearing on the motion to strike or otherwise. An immediate appeal would present to this Court for review the court's ruling in respect of each stricken portion of the complaint. Under Rule 4(a) (2), the court's rulings were subject to immediate review only by certiorari.

It is noted that plaintiff, if so advised, may seek leave to amend his complaint so as to allege additional facts.

Plaintiff urges that we reconsider on the present record that portion of the opinion in the Akers case, Southern Ry. Co. v. Akers Motor Lines, 242 N.C. 676, 89 S.E.2d 392, relating to the significance of G.S. § 136-20. A critical discussion thereof appears in 41 N.C.L.R. 296 et seq. Suffice to say, we are not disposed to consider whether the ruling in Akers relating to G.S. § 136-20 should be affirmed, modified or overruled except upon a proper appeal and in the context of a fully developed factual situation.

Appeal dismissed.

MOORE, J., not sitting.