Hinson v. Britt

61 S.E.2d 185 (1950)

232 N.C. 379

HINSON v. BRITT et al.

No. 95.

Supreme Court of North Carolina.

September 20, 1950.

*186 No counsel for plaintiff, appellee.

Herschel S. Harkins, Asheville, for defendants, appellants.

ERVIN, Justice.

Motions to strike out separate parts of pleadings are sanctioned by this provision of the Code of Civil Procedure: "If irrelevant or redundant matter is inserted in a pleading, it may be stricken out on motion of any person aggrieved thereby, but this motion must be made before answer or demurrer, or before an extension of time to plead is granted." G.S. § 1-153.

The City of Asheville Board of Alcoholic Control is empowered by law to appoint one or more law enforcement officers having "the same powers and authorities * * * as other peace officers." 1947 Session Laws, C. 1083 G.S. § 18-45. Any person so appointed is required by the statute codified as G.S. § 128-9 to give a bond to the State for the faithful discharge of the duties of his office. Jordan v. Harris, 225 N.C. 763, 36 S.E.2d 270.

Nevertheless, the omission of the defendants Dowtin and Horton to give the bonds required of them by G.S. § 128-9 did not affect their capacity to execute a search warrant or other judicial process. The law exacts the statutory bond of the law enforcement officer for the protection and indemnification of persons who may be damnified by his failure or neglect in the discharge of the duties of his office, and not as a condition precedent to his authority to act in the performance of such duties. 46 C.J., Officers, section 89; 57 C.J., Sheriffs, section 14.

Besides, Dowtin and Horton were appointed law enforcement officers by the City of Asheville Board of Alcoholic Control under statutory authority, and exercised the duties of their offices pursuant to such appointment. This being true, each of them was a de facto officer under the rule that a person is a de facto officer where the duties of the office are exercised "under color of a known and valid appointment or election, but where the officer failed to conform to some precedent requirement or condition, as to take an oath, give a bond, or the like." State v. Lewis, 107 N.C. 967, 12 S.E. 457, 458, 13 S.E. 247, 11 L.R.A. 105. The acts of a de facto officer are valid in law in respect to the public, whom he represents, and to *187 third persons, with whom he deals officially. In re Wingler, 231 N.C. 560, 58 S.E.2d 372.

For these reasons, the allegations that Dowtin and Horton failed to give the bonds required of them by G.S. § 128-9 are irrelevant on the present pleading, and the court ought to have stricken from the amended complaint the parts of paragraphs 3, 4, 5, and 6 designated by the defendants.

Notwithstanding this conclusion, the refusal of the court to strike the allegations in question from the amended complaint must be affirmed on the record presently presented. This Court does not correct errors of the Superior Court unless such errors prejudicially affect the substantial rights of the party appealing. Hence, the denying or overruling of a motion to strike matter from a pleading under the provisions of G.S. § 1-153 is not ground for reversal unless the record affirmatively reveals these two things: (1) That the matter is irrelevant or redundant; and (2) that its retention in the pleading will cause harm or injustice to the moving party. Teasley v. Teasley, 205 N.C. 604, 172 S.E. 197.

The record does not indicate that the defendants will suffer any harm or injustice by allowing the objectionable allegations to remain in the amended complaint. Indeed, it is manifest that the defendants can fully protect their rights in this connection by objecting to any testimony tending to show that Dowtin and Horton failed to give the bonds required of them by G.S. § 128-9, or by requesting a proper instruction as to the legal effect of such testimony. Scott v. Bryan, 210 N.C. 478, 187 S.E. 756; Pemberton v. City of Greensboro, 205 N.C. 599, 172 S.E. 196; 5 C.J.S., Appeal and Error, § 1689.

Affirmed.