Opinion
(Filed 2 November, 1938.)
APPEAL by defendants from Warlick, J., at March Term, 1938, of RANDOLPH. Affirmed.
Moser Miller and J. A. Spence for plaintiff.
W. T. Joyner and H. M. Robins for defendants.
This is an action for actionable negligence, for death of plaintiff's testate, brought by plaintiff against the defendants, alleging damage. The complaint was duly verified and filed at the time summons was issued, and a copy thereof was served with the summons on each of the defendants. The defendants in apt time, before answering or demurring, and before any extension of time to plead was granted, moved before the clerk of the Superior Court, upon due notice to the plaintiff, to strike from the complaint certain allegations thereof, specifically designated in its motion to strike, reduced to writing and filed in the cause in accordance with the statute.
The clerk of the Superior Court, upon the hearing before him, denied said motion and refused the defendants any part of the relief demanded. The defendants, in apt time and upon due notice to the plaintiff, appealed to the judge of the Superior Court from the judgment of the clerk.
Upon such hearing his Honor, Wilson Warlick, Judge, granted a part and denied a part of the relief by said motion demanded, and entered the order as appears in the record. To the entry of said order the defendants excepted, assigned error and appealed to the Supreme Court. This constitutes the defendants' only exception and assignment of error.
The court below, upon defendants' motion to strike certain allegations from the complaint, granted a part and denied a part of the relief demanded by said motion, Code 1935, sec. 537. We have heard the able arguments of the attorneys for the litigants, read the record and briefs, but see no error in the order of the court below.
Affirmed.