Warren v. Virginia-Carolina Joint Stock Land Bank

DeviN, J.

Defendant’s principal assignment of error is based upon tbe denial of its motion to strike certain allegations from tbe complaint, on tbe ground tbat they were irrelevant and prejudicial.

Tbe motion, however, was made after answer and on the day the case was calendared for trial, and was denied for tbe reason tbat it was not made in apt time (C. S., 537). The defendant then asked tbat its motion be allowed as a matter of discretion, and this was denied as not being a matter in the court’s discretion. When the case was reached for trial three days later tbe defendant again moved to strike out tbe offending allegations, and tbe motion was denied.

While tbe motion to strike was not made in proper time, that did not divest tbe court of the power, in tbe exercise of its sound discretion, to allow tbe motion during tbe term at which tbe case was on tbe calendar for trial, and tbe statement of tbe judge below, in denying tbe motion when first made, tbat it was not a matter of discretion, was an inadvertence (Hines v. Lucas, 195 N. C., 376 , 142 S. E., 319 ;

Washington v. Hodges, 200 N. C., 364 , 156 S. E., 912 ; C. S., 536). But tbe motion to strike was made later in tbe week before tbe trial was begun, and the record at tbat time shows merely tbat tbe motion was denied. No *209 reason was assigned for tbe action of tbe court. There is no presumption that tbe later ruling was based upon want of power. Tbe record does not preclude tbe assumption that tbe motion was denied in tbe exercise of discretion, since, as was said in Hogsed v. Pearlman, 213 N. C., 240 : “Tbe ruling of tbe court below, in tbe consideration of an appeal, is presumed to be correct.” In tbis view tbe defendant’s exception to tbe former ruling of tbe court would seem to be without merit. Nor do tbe facts show an abuse of discretion. But if it be conceded that tbe last ruling of tbe court was also based on tbe erroneous view of want of power and that there was a failure to exercise tbe discretion vested in tbe court, nevertheless it appears that in tbe trial no evidence was admitted in support of tbe irrelevant allegations sought to be stricken from tbe complaint, and we cannot bold that tbe jury was influenced or tbe defendant prejudiced thereby, so as to require tbe granting of a new trial.

Tbe uneontradicted evidence bearing on tbe invalidity of tbe foreclosure was • sufficient to sustain tbe ruling of tbe trial judge thereon (Davis v. Doggett, 212 N. C., 589 ;

Warren v. Susman, 168 N. C., 457 , 84 S. E., 160 ;

Hayes v. Pace, 162 N. C., 288 , 78 S. E., 290 ; 41 C. J., 953), and tbis left as tbe only controverted issue tbe value of tbe land at tbe time tbe title passed to innocent purchasers for value. Tbe form of tbe issue was agreed to by tbe defendant. There was competent evidence to support tbe verdict of tbe jury and tbe charge of tbe court was free from error.

We have examined tbe other exceptions noted by defendant during tbe trial and find therein no sufficient ground upon which to overthrow tbe verdict and judgment below.

No error.