Hawkins v. . Moss

Supreme Court of North Carolina

Hawkins v. . Moss

21 S.E.2d 873, 222 N.C. 95, 1942 N.C. LEXIS 36

Supreme Court of North Carolina·Decided September 30, 1942·Published·Cited by 7 cases

Opinion

Winborne, J.

“The function of a complaint” as stated by Walker, J., in Winders v. Hill, 141 N. C., 694, 54 S. E., 440, “is not the narration of the evidence, but a statement of the substantive and constituent facts upon which the plaintiff’s claim to relief is founded. The bare statement of the ultimate facts is all that is required, and they are always such as are directly put in issue. Probative facts are those which may be in controversy, but are not issuable. Facts from which the ultimate and decisive facts may be inferred are but evidence, and therefore probative. Those from which a legal conclusion may be drawn and upon which the right of action depends are the issuable facts which are proper to be stated in a pleading. The distinction is well marked in the following passage: ‘The ultimate facts are those which the evidence upon the trial will prove, and not the evidence which will be required to prove the existence of those facts.’ Wooden v. Strew, 10 How. Pr., 48; 4 Enc. of Pl. and Pr., p. 612.” See also Revis v. Asheville, 207 N. C., 237, 176 S. E., 738.

Upon motion of any party aggrieved, aptly made, the court may strike out irrelevant and redundant matter appearing in a complaint. C. S., 537. Applying this statute and the principle above stated to the complaint in hand, it appears that all the portions to which exception is taken and which were not stricken out below, other than the allegations in paragraphs nine and ten, relate directly to the ultimate facts and, though of decorative quality and expressed in somewhat high-flown language, they are within the pale of proper pleading in statement of the cause of action. See McDonald v. Zimmerman, 206 N. C., 746, 175 S. E., 92. On the other hand, the allegations contained in paragraphs nine and ten are wholly evidential and probative, and have no place in stating the cause of action, and for that reason should be stricken out. Hence, the judgment below is modified in accordance with these rulings.

Modified and affirmed.

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Winborne, J.

“The function of a complaint” as stated by Walker, J., in Winders v. Hill, 141 N. C., 694, 54 S. E., 440, “is not the narration of the evidence, but a statement of the substantive and constituent facts upon which the plaintiff’s claim to relief is founded. The bare statement of the ultimate facts is all that is required, and they are always such as are directly put in issue. Probative facts are those which may be in controversy, but are not issuable. Facts from which the ultimate and decisive facts may be inferred are but evidence, and therefore probative. Those from which a legal conclusion may be drawn and upon which the right of action depends are the issuable facts which are proper to be stated in a pleading. The distinction is well marked in the following passage: ‘The ultimate facts are those which the evidence upon the trial will prove, and not the evidence which will be required to prove the existence of those facts.’ Wooden v. Strew, 10 How. Pr., 48; 4 Enc. of Pl. and Pr., p. 612.” See also Revis v. Asheville, 207 N. C., 237, 176 S. E., 738.

Upon motion of any party aggrieved, aptly made, the court may strike out irrelevant and redundant matter appearing in a complaint. C. S., 537. Applying this statute and the principle above stated to the complaint in hand, it appears that all the portions to which exception is taken and which were not stricken out below, other than the allegations in paragraphs nine and ten, relate directly to the ultimate facts and, though of decorative quality and expressed in somewhat high-flown language, they are within the pale of proper pleading in statement of the cause of action. See McDonald v. Zimmerman, 206 N. C., 746, 175 S. E., 92. On the other hand, the allegations contained in paragraphs nine and ten are wholly evidential and probative, and have no place in stating the cause of action, and for that reason should be stricken out. Hence, the judgment below is modified in accordance with these rulings.

Modified and affirmed.

Hawkins v. . Moss, 21 S.E.2d 873, 222 N.C. 95, 1942 N.C. LEXIS 36 (N.C. 1942).

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