Williams v. Denning

133 S.E.2d 150 (1963)

260 N.C. 539

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

No. 529.

Supreme Court of North Carolina.

November 20, 1963.

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

Shepard, Spence & Mast, Smithfield, by Norman C. Shepard, for defendant appeallees.

PER CURIAM.

Plaintiff took eleven exceptionsten to the order sustaining defendants' motion to strike, *151 one to the refusal to allow its motion for judgment by default.

The exceptions are not grouped in the record as required by Rule 19(3) of the Court (254 N.C. 797). An order striking allegations contained in a pleading is not appealable. The remedy, if the order is deemed erroneous, is by certiorari. Rule 4 (a) (2) (254 N.C. 785).

Plaintiff's pleadings are a complaint, G.S. § 1-121, and a reply, G.S. § 1-140. Defendants pleadings are an answer and a demurrer, G.S. § 1-124. A motion is an application for an order, G.S. § 1-578. It is not a pleading within the meaning of G. S. § 1-144. Brownfield v. South Carolina, 189 U.S. 426, 23 S. Ct. 513, 47 L. Ed. 882.

The order allowing plaintiff to file an amended complaint and defendant time thereafter to answer was made in the court's discretion and as such is not reviewable in the absence of manifest abuse, which is not here suggested. Osborne v. Town of Canton, 219 N.C. 139, 13 S.E.2d 265.

Appeal dismissed.