Williams v. Denning

133 S.E.2d 148 (1963)

260 N.C. 540

Jesse Noah WILLIAMS and wife, Ellen Williams, t/a Southland Livestock, Inc., v. John DENNING, C. L. Denning and Kenneth Westbrook, t/a Denning-Westbrook Oil Company, Inc.

No. 528.

Supreme Court of North Carolina.

November 20, 1963.

*149 E. R. Temple, Smithfield, for plaintiff appellant.

Shepard, Spence & Mast, Smithfield, for defendant appellees.

PER CURIAM.

Appellant is not a "party aggrieved" and had no right of appeal from portions of the order striking the names of the individuals and the letters "t/a" from the captions of the summons and complaint and the references to said individuals from the complaint. Suffice to say, the matter so stricken was not germane to the only cause of action the complaint purports to allege, namely, a cause of action by "the plaintiff corporation" against "the defendant corporation."

As to portions of said order striking allegations relating to the alleged cause of action by "the plaintiff corporation" against "the defendant corporation," appellant did not apply to this Court for a writ of certiorari and its purported appeal must be dismissed for failure to comply with our Rule 4(a) (2), Rules of Practice in the Supreme Court, 254 N.C. 783, 785.

The motion to strike was filed in apt time. Hence, there was no merit in appellant's motion for judgment by default final and no right of appeal from the court's denial thereof.

In addition to the foregoing, no assignments of error appear in the record filed in this Court. Hence, appellant's purported appeal is subject to dismissal for failure to comply with our Rule 19(3), Rules of Practice in the Supreme Court, 254 N.C. 783, 797.

Appeal dismissed.