Temple v. Western Union Telegraph Co.

171 S.E. 630, 205 N.C. 441, 1933 N.C. LEXIS 586

• Court: Supreme Court of North Carolina
• Decided: November 22, 1933
• Status: Published

Opinion

Stacy, C. J.

It is the uniform holding that an application for bill of particulars under C. S., 534, or a motion to require a pleading to be made more definite aiid certain under C. S., 537, is addressed to the sound discretion of the trial court, and his ruling thereon is not reviewable on appeal, except perhaps in case of manifest abuse of discretion. Carteret County v. Construction Corp., 199 N. C., 485, 154 S. E., 746; Gruber v. Ewbanks, 199 N. C., 335, 154 S. E., 318; Power Co. v. Elizabeth City, 188 N. C., 278, 124 S. E., 611.

The law is stated in 49 C. J., 625, as follows:

“It is a matter for the sound discretion of the court whether under the circumstances of the case a demand for a bill of particulars should be granted or refused. This power of the court exists by virtue of its general power to regulate the conduct of trials, and it is incident to its general authority in the administration of justice. It is the same power in kind that courts have to grant a new trial on the ground of surprise.”

It is likewise settled by the decisions that the principle of res judicata does not extend to ordinary motions incidental to the progress of a cause, but only to- those involving substantial rights. Revis v. Ramsey, 202 N. C., 815, 164 S. E., 358; Townsend v. Williams, 117 N. C., 330, 23 S. E., 461; Allison v. Whittlier, 101 N. C., 490, 8 S. E., 338; Mabry v. Henry, 83 N. C., 298.

Therefore, it may be conceded that at the June Term the court was. at liberty, in its discretion, to strike out the discretionary order previously granted at the April Term. Townsend v. Williams, supra. But the second ruling, the one revoking the prior order, was not made in the court’s discretion. It is stated that the first order is stricken out because improvidently granted, and for the further reason that defendant has an adequate remedy under C. S., 900-901 to compel the plaintiff to submit to examination, etc. It is true, the defendant might have resorted to the suggested procedure and examined the plaintiff under the statutes mentioned, but this would not render the order previously granted under O. S., 534 or 537, improvident as a matter of law.

Error.