Chandler v. Mashburn

63 S.E.2d 553 (1951)

233 N.C. 277

CHANDLER v. MASHBURN.

No. 97.

Supreme Court of North Carolina.

February 28, 1951.

*554 J. M. Baley, Jr., Marshall, for plaintiff appellant.

Carl R. Stuart, Marshall, for defendant appellee.

WINBORNE, Justice.

The only assignment of error presented on the appeal is, by the terms of the brief of plaintiff filed in this Court, confined to the refusal of the court to strike out paragraphs five, six, seven and eight of defendant's "further answer and defense".

As so confined, the exception thereto on which the assignment is based is well taken.

The answer of a defendant must contain (1) a general or specific denial of each material allegation of the complaint controverted by the defendant, and (2) a statement of any "new matter constituting a defense or counterclaim". G.S. § 1-135, formerly C.S. 519.

The plea of denial controverts and raises an issue of fact between the parties as to each material allegation denied, and forces the plaintiff to prove them. That is all that is required of the defendant to admit of presentation of his defense. McIntosh N. C. P & P 461. In such case the defendant may show any facts which go to deny the existence of the controverted facts. Brown v. Hall, 226 N.C. 732, 40 S.E.2d 412. Hence, averments narrating evidence which defendant contends sustains his denial of the controverted facts are irrelevant as pleading, and have no place in the answer.

And upon motion of any party aggrieved, aptly made, the court may strike out irrelevant or redundant matter inserted in a pleading. G.S. § 1-153. Revis v. City of Asheville, 207 N.C. 237, 176 S.E. 738.

Applying these principles to case in hand the answer of defendant, denying the allegation of the complaint that plaintiff was born of the marriage between Arsemus Chandler and Della Fender Hensley, raises an issue of fact, forcing plaintiff to proof of the fact alleged in his complaint. This is all that is required of defendant to admit of presentation of his defense under appropriate rules of evidence. Therefore, the narration of the evidential matters contained in paragraphs five, six, seven and eight of defendant's "further answer and defense" is irrelevant, and, upon motion aptly made should be stricken. This does not render incompetent any competent evidence recited in these paragraphs of the answer, if and when offered by defendant, relevant to issue involved.

For causes stated, the judgment below is

Reversed.