Teasley v. . Teasley

172 S.E. 197, 205 N.C. 604, 1934 N.C. LEXIS 25

Opinion

Stacy, C. J.

As we understand the record, the further averment of the answer, which the plaintiff seeks to have stricken out, is but an elaboration of the denial, previously made, of the allegation that the parties Lave lived separate and apart for two years within the meaning of chapter 163, Public Laws, 1933.

If the motion were allowed, the case would still remain on the docket as a contested case; and, in view of the affidavits relative to “the truth concerning the separation,” we are not disposed to try to chart the course of the trial in advance of the hearing upon its merits. Pemberton v. Greensboro, ante, 599. It is not perceived that any harm has come to the plaintiff from the court’s action, or that any injury is likely to result therefrom. The ruling will not be disturbed on the record as presented.

Indeed, it may be doubted whether the ruling affects such a substantial right as to make it appealable. Billings v. Observer, 150 N. C., 540, 64 S. E., 435; Rogerson v. Lumber Co., 136 N. C., 266, 48 S. E., 647; Lutz v. Cline, 89 N. C., 186. The evidence as to the true nature of the separation would be competent with or without the explanatory allegation.

The case is not like Deloatch v. Vinson, 108 N. C., 147, 12 S. E., 895, cited and relied upon by plaintiff, or Ellis v. Ellis, 198 N. C., 767, 153 S. E., 449.

Affirmed.