Johnson v. Austin

224 S.E.2d 293 (1976)

29 N.C. App. 415

Peggy Sue W. JOHNSON v. Olin B. AUSTIN.

No. 7520SC1008.

Court of Appeals of North Carolina.

May 5, 1976.

Certiorari Denied June 17, 1976.

*294 Coble Funderburk, Monroe, for plaintiff.

Griffin & Caldwell by C. Frank Griffin, Griffin & Humphries by James E. Griffin, Monroe, for defendant.

Certiorari Denied by Supreme Court June 17, 1976.

MARTIN, Judge.

Plaintiff contends the court erred in granting the defendant's motion for judgment on the pleadings and dismissing plaintiff's action.

"A consummated agreement to compromise and settle disputed claims is conclusive and binding on the parties to the agreement and those who knowingly accept its benefits." Keith v. Glenn, 262 N.C. 284, 136 S.E.2d 665 (1964). In the case at bar, the plaintiff alleged negligence on the part of the defendant, denied negligence on her part, and in her reply to defendant's counterclaim, alleged that the defendant had been satisfied of all damages, if any, that he received in the collision in that he had signed a complete release for all damages that he claimed a result of said collision. The pleading of the release as a bar to the counterclaim constitutes a ratification of the settlement and bars plaintiff's action. Keith v. Glenn, supra. Therefore, this assignment of error is overruled.

Plaintiff next contends the trial court erred in refusing to permit the plaintiff to amend her pleadings to allege that the release referred to in her reply was taken without the plaintiff's knowledge, consent or approval.

The record shows that the last pleading filed was plaintiff's reply, which was filed 1 August 1975. Plaintiff's motion was made after the case was called for trial on 18 November 1975. Substantially more than 30 days after service of the last responsive pleading had elapsed. The pleading was not necessary to conform with the evidence because no evidence had been introduced. Thus, the pleading could only have been admitted by leave of court or by written consent of the adverse party. G.S. 1A-1, Rule 15. The adverse party did not give written consent and the trial judge, in his discretion, chose not to grant such motion.

Affirmed.

BROCK, C. J., and VAUGHN, J., concur.