Scarboro v. Morgan

58 S.E.2d 354, 231 N.C. 597, 1950 N.C. LEXIS 348

Opinion

Stacy, C. J.

The single imputed error to the order striking the allegations of fraud in the procurement of the Wilson County judgment of an annullment presents only the question whether error appears on the face of the record. Terry v. Coal Co., ante, 103, 55 S.E. 2d 926; Clodfelter v. Gas Corp., ante, 343, 56 S.E. 2d 600.

Moreover, if the judgment be without significance or effect in the present proceeding, as the plaintiffs allege, then no harm has come to them from the ruling on the motion to strike. The case can readily be tried without the deleted allegations. Parker v. Luke University, 230 N.C. 656, 55 S.E. 2d 189. Nor is it according to precedent for this Court to chart the course of the trial on motions to strike portions of the pleadings. Pemberton v. Greensboro, 205 N.C. 599, 172 S.E. 196; 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 appeal seems to have been taken out of the abundance of caution.

Tbe error assigned is insufficient to require a disturbance of tbe ruling on tbe motion to strike. Hence, tbe result is an affirmance of tbe judgment. Town of Burnsville v. Boone, ante, 577.

Affirmed.