Thompson v. Thompson

BROCK, Chief Judge.

Plaintiff presents four arguments for our consideration. His first argument challenges (1) the failure of the trial judge to strike defendant’s allegations that she repaid a portion of the bank loan; (2) the judge’s treating .the defendant’s answer as a counterclaim; and (8) the admission of evidence concerning defendant’s repayment of the loan. The gist of plaintiff’s argument is that these matters concerning.'defendant’s repayment of the loan constitute a “new cause of action” having “no substantial relation to the controversy between the parties.” This argument is feckless. The cases cited by plaintiff as authority for his argument were written long before the adoption of the North Carolina Rules of Civil Procedure and do not support, his contentions. G.S. 1A-1, Rule 18(b) provides:

“Permissive counterclaim. — A pleading may state as a counterclaim any claim against an opposing party not arising out of the transaction or occurrence that is the subject matter of the opposing party’s claim.”

To further bolster his first argument, plaintiff asserts that he was “unfairly surprised” when the court allowed the defendant to inject her counterclaim into the case “in the middle of the trial.” The record shows that the defendant’s motion to treat her answer as a counterclaim was granted at the pretrial conference. Plaintiff had sufficient time to prepare a defense. In our opinion plaintiff’s argument is wholly without merit.

Plaintiff’s remaining arguments are directed to the instructions given by the trial judge to the jury. We have reviewed these instructions and find them to be adequate and fair. In our opinion plaintiff had a fair trial free from prejudicial error.

No error.

Judges Morris and Hedrick concur.