United States Fire Insurance v. Parks

80 S.E.2d 641, 239 N.C. 680, 1954 N.C. LEXIS 618

• Court: Supreme Court of North Carolina
• Decided: March 17, 1954
• Status: Published

Opinion

Per Curiam.

"We have heretofore fully discussed the law as it relates to the question here presented. Any further discussion at this time could add nothing to what we have already said. It comes to this: Even though the motion is made in the court below as a matter of right, the appellant, on appeal, must show prejudicial error in the ruling thereon by the trial judge, whether the motion is allowed or denied.

The new matter alleged in the answer and stricken by the court below is foreign to the issues plaintiff seeks to raise. The alleged counterclaim is couched in language which amounts to nothing more than a conclusion. Furthermore, even if we concede that facts sufficient to constitute a cause of action are alleged, the counterclaim is one which is not properly plead-able in this cause. Schnepp v. Richardson, 222 N.C. 228, 22 S.E. 2d 555; Hancammon v. Carr, 229 N.C. 52, 47 S.E. 2d 614.

As no prejudicial error is made to appear, the judgment entered in the court below is

Affirmed.