Parker v. Duke University

55 S.E.2d 189, 230 N.C. 656, 1949 N.C. LEXIS 414

• Court: Supreme Court of North Carolina
• Decided: September 28, 1949
• Status: Published

Opinion

Stacy, C. J.

The single imputed error “in the signing of the judgment,” presents only the question whether error appears on the face of the record. Query v. Ins. Co., 218 N.C. 386, 11 S.E. 2d 139; Wilson v. Charlotte, 206 N.C. 856, 175 S.E. 306; Smith v. Smith, 223 N.C. 433, 27 S.E. 2d 137; King v. Rudd, 226 N.C. 156, 37 S.E. 2d 116; Rader v. Coach Co., 225 N.C. 537, 35 S.E. 2d 609.

We are not prepared to say that such has been revealed or made manifest. Nor is it according to precedent to chart the course of the trial on close or attenuate motions to strike portions of the pleadings. Pemberton v. Greensboro, 205 N.C. 599, 172 S.E. 196; Hardy v. Dahl, 209 N.C. 746, 184 S.E. 480; Scott v. Bryan, 210 N.C. 478, 187 S.E. 756; Ludwick v. Ry. Co., 212 N.C. 664, 194 S.E. 282; Hill v. Stansbury, 221 N.C. 339, 20 S.E. 2d 308; Penny v. Stone, 228 N.C. 295, 45 S.E. 2d 362.

The same matters will be presented when the evidence is offered and they can then be readily determined by the rulings thereon. Of course, the judgment here appealed from would have no bearing on the competency of any evidence which may be offered on the hearing. But the defendants say they will be prejudiced by the reading of these challenged allegations to the jury. No more so, we apprehend, than the reading of the general allegations of negligence. The jury’s verdict is to be rendered ■on evidence — not on controverted allegations of the complaint. Hosiery Mill v. Hosiery Mills, 198 N.C. 596, 152 S.E. 794. It follows, therefore, that on the record as presented, no disturbance of the ruling is indicated •or required.

Affirmed.