Tillis v. Calvine Cotton Mills

76 S.E.2d 376 (1953)

238 N.C. 124

TILLIS v. CALVINE COTTON MILLS, Inc. et al.

No. 522.

Supreme Court of North Carolina.

June 12, 1953.

*377 G. T. Carswell, B. Irvin Boyle and James F. Justice, Charlotte, for plaintiff, appellant.

Clayton & Sanders, Charlotte, for defendants, appellees.

JOHNSON, Justice.

This proceeding to examine the plaintiff before trial was under the procedure prescribed by Chapter 760, Session Laws of *378 1951, now codified as G.S. § 1-568.1 through 1-568.27. This Act repealed the former statutes dealing with examination of parties before trial. G.S. §§ 1-568 through 1-576.

The statute directs that a party may be examined adversely for the purpose of obtaining evidence to be used at the trial, G.S. § 1-568.3(2); and where the pleadings have been filed on both sides, an examination may be had as "a matter of right". G.S. § 1-568.9(c).

Here the pleadings are in on both sides. The defendant's preliminary affidavit on which the order below is based meets statutory requirements. G.S. § 1-568.11. See also Douglas v. Buchanan, 211 N.C. 664, 191 S.E. 736.

Therefore under our usual procedure the appeal will be dismissed as premature. Abbitt v. Gregory, 196 N.C. 9, 144 S.E. 297. See also Brown v. E. H. Clement Co., 203 N.C. 508, 166 S.E. 515; Whitehurst v. Hinton, 184 N.C. 11, 113 S.E. 500; Monroe v. Holder, 182 N.C. 79, 108 S.E. 359; Pender v. Mallett, 122 N.C. 163, 30 S.E. 324; Holt v. Southern Finishing & Warehouse, 116 N.C. 480, 21 S.E. 919; Vann v. Lawrence, 111 N.C. 32, 15 S.E. 1031; City of Shelby v. Lackey, 235 N.C. 343, 69 S.E.2d 607; City of Raleigh v. Edwards, 234 N.C. 528, 67 S.E.2d 669.

A consideration of the appeal on its merits as in Knight v. Little, 217 N.C. 681, 9 S.E.2d 377, would avail the plaintiff no substantial relief. A bill of particulars and discovery under our statutes are not inconsistent remedies; rather, they are concurrent and cumulative remedies. G.S. § 1-150 and G.S. § 1-568.1 et seq.; 71 C.J.S., Pleading, §§ 376, 388, 393, pages 799, 816, 824. Therefore the defendants were not put to an election in applying for a bill of particulars. Randle v. Grady, 228 N.C. 159, 45 S.E.2d 35; 18 Am.Jur., Election of Remedies, Sections 9 through 13. Moreover, it is noted that some, at least, of the interrogatories submitted by the defendants as the basis for their motion for leave to examine the plaintiff would seem to be unobjectionable. See Grandy v. Walker, 234 N.C. 734, 68 S.E.2d 807; 27 C.J.S., Discovery, § 61, note 65.

Besides, the provisions of G.S. §§ 1-568.17 and 1-568.18 and related statutes furnish the plaintiff adequate protection against harrassment or the hazard of untoward consequences on refusal to answer such of the interrogatories as appear to be unduly repetitious or beyond the proper scope of examination. See also G.S. § 1-568.23(d).

Appeal dismissed.