Bailey Ex Rel. Bailey v. Roberts

181 S.E. 754, 208 N.C. 532, 1935 N.C. LEXIS 73

• Court: Supreme Court of North Carolina
• Decided: October 9, 1935
• Status: Published

Opinion

OlaeicsoN, J.

Tbe first contention made by defendants in tbe demurrer is to tbe effect that tbe plaintiff has no legal capacity to sue. We think this position taken by defendants has been abandoned.

In tbe judgment of tbe court below is tbe following: “The court being of tbe opinion that E. D. Bailey has been properly appointed as tbe next friend and, as sucb, is entitled to prosecute this cause on behalf of tbe infant, Charles Bailey.” The defendants, as to this aspect, filed no exception and assignment of error, nor did they comply with Rule 28 (200 N. C., 831), which, in part, is as follows: “Exceptions in the record not set out in appellant’s brief, or in support of which no reason or argument is stated or authority cited, will be taken as abandoned by him.”

The question involved: Did the court err in permitting the plaintiff to amend his complaint upon the hearing of the demurrer? We think not.

In Hood, Comr., v. Love, 203 N. C., 583 (585), it is said: “In the case of S. v. Bank, 193 N. C., at pp. 527-8, citing numerous authorities, we find: ‘When a case is presented on demurrer we are required by the statute, C. S., 535, to construe the complaint liberally “with a view to substantial justice between the parties,” and in enforcing this provision we have adopted the rule “that if in any portion of it, or to any extent, it presents facts sufficient to constitute a cause of action, or if facts sufficient for that purpose can be fairly gathered from it, the pleading will stand, however inartificially it may have been drawn, or however uncertain, defective, and redundant may be its statements. For, contrary to the common-law rule, every reasonable intendment and presumption must be made in favor of the pleader.” ’ ” (Citing numerous authorities.) “The trial court has plenary power, without consent, to amend pleadings, so far as the amendment did not allege substantially a new cause of action. Bridgeman v. Ins. Co., 197 N. C., 599. Allowing all amendments in pleadings is in the sound discretion of the court. Sheppard v. Jackson, 198 N. C., 627. The trial court can, in its discretion, amend pleadings before or after judgment to conform to facts proved. Finch v. R. R., 195 N. C., 190.” N. C. Code (Michie), 1935, see. 547.

We do not discuss the allegations of the complaint, as the matter goes back for a trial on the merits. The allegations as to the liability as joint tort-feasors are sufficient in law. Moses v. Morganton, 192 N. C., 102; Lineberger v. City of Gastonia, 196 N. C., 445; Glazener v. Transit Lines, 196 N. C., 504. The allegations of fact in Ballinger v. Thomas et al., 195 N. C., 517, are different and the case is distinguishable from the present one, but the law therein stated is the same as in the above cited cases. Rountree v. Fountain, 203 N. C., 381, and White v. Charlotte, 207 N. C., 721, are not in point.

For the reasons given, the judgment of the court below is

Affirmed.