Calloway v. Ford Motor Co.

HEDRICK, Judge.

When this case was called for argument in this Court, the defendant Matthews moved that its appeal be treated as a petition for certiorari to review the order of Judge Ervin. The petition for certiorari as a substitute for an appeal is allowed.

The question presented is whether Judge Ervin on 12 November 1970 was precluded as a matter of law from allowing the motion of the defendant Matthews to amend its answer by pleading the statute of limitations. The answer lies in a consideration of Judge Hasty’s denial of the same motion on 4 May 1970.

The complaint in this action was filed on 9 August 1968. The first motion to amend was filed on 27 March 1970, well after the time for filing answer had expired. In Blanton v. McLawhorn, 6 N.C. App. 576, 170 S.E. 2d 559 (1969), Parker, Judge, quoting with approval from Hardy v. Mayo, 224 N.C. 558, 31 S.E. 2d 748 (1944), stated: “After the time for answering a petition or complaint has expired, the respondent or defendant may not as a matter of right, file an amended answer. The right to amend after the time for answering has expired, is addressed to the discretion of the court, and the decision thereon is not subject to review, except in case of manifest abuse.” This is equally true of a motion to amend by pleading the statute of limitations when the time for answering has expired. Smith v. Smith, 123 N.C. 229, 31 S.E. 471 (1898) ; Balk v. Harris, 130 N.C. 381, 41 S.E. 940 (1902).

If the appellant felt that Judge Hasty’s order denying its motion to amend was erroneous, then relief should have been sought through the appellate courts. Greene v. Laboratories, Inc., 254 N.C. 680, 120 S.E. 2d 82 (1961).

The appellant excepted to Judge Hasty’s order denying his motion to amend, but instead of seeking appellate review, he filed the same motion before Judge Ervin. It is a well settled principle of law that no appeal lies from one superior court judge to another. In re Register, 5 N.C. App. 29, 167 S.E. 2d 802 (1969) ; Bank v. Hanner, 268 N.C. 668, 151 S.E. 2d 579 (1966).

Therefore, we hold that Judge Ervin was precluded as a matter of law from allowing appellant’s motion to amend by pleading the statute of limitations. The order of Judge Ervin is affirmed.

Affirmed.

Judge Morris concurs. Judge Brock dissents.