Tucker v. Transou

Supreme Court of North Carolina

Tucker v. Transou

88 S.E.2d 131, 242 N.C. 498, 1955 N.C. LEXIS 600

CourtSupreme Court of North Carolina

DecidedJune 30, 1955

Docket750

StatusPublished

Cited by3 cases

This text of 88 S.E.2d 131 (Tucker v. Transou) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Tucker v. Transou, 88 S.E.2d 131, 242 N.C. 498, 1955 N.C. LEXIS 600 (N.C. 1955).

Pincite

Opinion

DenNY, J.

A motion to strike allegations in a defendant’s answer, as a matter of right, pursuant to the provisions of G.S. 1-153, comes too late when it is not made until the case is calendared for trial or until the jury has been selected and impaneled. Warren v. Virginia-Carolina Joint Stock Land Bank, 214 N.C. 206, 198 S.E. 624. But when a motion to strike is not made in apt time, the court has discretionary power to *500 allow or deny such motion, and its ruling will not be disturbed on appeal in the absence of an abuse of discretion. Parrish v. R. R., 221 N.C. 292, 20 S.E. 2d 299. No abuse of discretion or prejudicial error has been shown on this appeal since it is not within the province of the Superior Court on appeal in such proceeding, to decide where the cart-way is to be located and laid out or to determine and assess the amount of damages, if any. Garris v. Byrd, 229 N.C. 343, 49 S.E. 2d 625.

It is true that an aggrieved party is not required to wait until a cartway is laid off and the damages assessed before appealing from an order of the Clerk of the Superior Court adjudging that a petitioner is entitled to a cartway. Triplett v. Lail, 227 N.C. 274, 41 S.E. 2d 755. But, if upon appeal such order is affirmed, the location of the cartway and the assessment of damages, if any, are matters for the jury of view, subject to the right of the court to review its findings. Garris v. Byrd, supra.

The ruling of the court below is

Affirmed.

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DenNY, J.

A motion to strike allegations in a defendant’s answer, as a matter of right, pursuant to the provisions of G.S. 1-153, comes too late when it is not made until the case is calendared for trial or until the jury has been selected and impaneled. Warren v. Virginia-Carolina Joint Stock Land Bank, 214 N.C. 206, 198 S.E. 624. But when a motion to strike is not made in apt time, the court has discretionary power to *500 allow or deny such motion, and its ruling will not be disturbed on appeal in the absence of an abuse of discretion. Parrish v. R. R., 221 N.C. 292, 20 S.E. 2d 299. No abuse of discretion or prejudicial error has been shown on this appeal since it is not within the province of the Superior Court on appeal in such proceeding, to decide where the cart-way is to be located and laid out or to determine and assess the amount of damages, if any. Garris v. Byrd, 229 N.C. 343, 49 S.E. 2d 625.

It is true that an aggrieved party is not required to wait until a cartway is laid off and the damages assessed before appealing from an order of the Clerk of the Superior Court adjudging that a petitioner is entitled to a cartway. Triplett v. Lail, 227 N.C. 274, 41 S.E. 2d 755. But, if upon appeal such order is affirmed, the location of the cartway and the assessment of damages, if any, are matters for the jury of view, subject to the right of the court to review its findings. Garris v. Byrd, supra.

The ruling of the court below is

Affirmed.

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Bluebook (online)

88 S.E.2d 131, 242 N.C. 498, 1955 N.C. LEXIS 600, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tucker-v-transou-nc-1955.

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