Opinion
No. 7128SC171
Filed 23 June 1971
1. Pleadings 32 — amendment of answer after time for filing answer expires The right to amend an answer after the time for filing answer has expired is addressed to the discretion of the court, and decision thereon is not subject to review except in case of manifest abuse.
2. Courts 9 — appeal from one superior court judge to another No appeal lies from one superior court judge to another.
3. Courts 9; Pleadings 32 — discretionary denial of motion to amend — authority of another judge to allow amendment Where a superior court judge had, in his discretion, denied defendant's motion to amend its answer to plead the statute of limitations after the time for filing answer had expired, another superior court judge could not thereafter allow the amendment.
ON certiorari as a substitute for an appeal by defendant Matthews Motors, Inc. (Matthews), to review an order of Ervin, Judge, entered on 12 November 1970 in the Superior Court held in BUNCOMBE County.
No counsel for plaintiff appellee.
Van Winkle, Buck, Wall, Starnes Hyde by O. E. Starnes, Jr., for defendant appellant.
Judge BROCK dissenting.
This is a civil action instituted on 9 August 1968 to recover damages for personal injuries allegedly sustained by the plaintiff while operating an automobile manufactured by the defendant Ford Motor Company, and sold to the plaintiff's employer by the defendant Matthews.
On 8 November 1968, the defendant Matthews filed answer denying the material allegations of the complaint.
On 27 March 1970, the defendant Matthews moved to amend its answer by pleading the three-year statute of limitations in bar of the plaintiff's claim. Judge Hasty, on 4 May 1970, denied the motion to amend by an order which in pertinent part reads: "[T]he Court is of the opinion, in its discretion, that said Motion should be denied."
On 20 October 1970, Matthews again moved to amend its answer by pleading the statute of limitations in bar of plaintiff's claim, and by an order dated 12 November 1970, Judge Ervin denied the motion, stating in pertinent part: ". . . and it appearing to the Court that the Honorable Fred H. Hasty had by order dated May 4, 1970, denied an earlier motion of the defendant, Matthews Motors, Inc., to amend its answer to plead the three year statute of limitations in the exercise of his discretion; . . . that the undersigned is inclined to grant the motion of Matthews Motors, Inc. dated October 20, 1970, . . . but does not have the authority to exercise his discretion but must rule as a matter of law."
The defendant Matthews excepted to the order of Judge Ervin and gave notice of appeal to this Court.
When this case was called for argument in this Court, the defendant Matthews moved that its appeal be treated as a petition for certiorari to review the order of Judge Ervin. The petition for certiorari, as a substitute for an appeal is allowed.
The question presented is whether Judge Ervin on 12 November 1970 was precluded as a matter of law from allowing the motion of the defendant Matthews to amend its answer by pleading the statute of limitations. The answer lies in a consideration of Judge Hasty's denial of the same motion on 4 May 1970.
The complaint in this action was filed on 9 August 1968. The first motion to amend was filed on 27 March 1970, well after the time for filing answer had expired. In Blanton v. McLawhorn, 6 N.C. App. 576, 170 S.E.2d 559 (1969), Parker, Judge, quoting with approval from Hardy v. Mayo, 224 N.C. 558, 31 S.E.2d 748 (1944), stated: "After the time for answering a petition or complaint has expired, the respondent or defendant may not as a matter of right, file an amended answer. The right to amend after the time for answering has expired, is addressed to the discretion of the court, and the decision thereon is not subject to review, except in case of manifest abuse." This is equally true of a motion to amend by pleading the statute of limitations when the time for answering has expired. Smith v. Smith, 123 N.C. 229, 31 S.E. 471 (1898); Bolk v. Harris, 130 N.C. 381, 41 S.E. 940 (1902).
If the appellant felt that Judge Hasty's order denying its motion to amend was erroneous, then relief should have been sought through the appellate courts. Greene v. Laboratories, Inc., 254 N.C. 680, 120 S.E.2d 82 (1961).
The appellant excepted to Judge Hasty's order denying his motion to amend, but instead of seeking appellate review, he filed the same motion before Judge Ervin. It is a well settled principle of law that no appeal lies from one superior court judge to another. In re Register, 5 N.C. App. 29, 167 S.E.2d 802 (1969); Bank v. Hanner, 268 N.C. 668, 151 S.E.2d 579 (1966).
Therefore, we hold that Judge Ervin was precluded as a matter of law from allowing appellant's motion to amend by pleading the statute of limitations. The order of Judge Ervin is affirmed.
Affirmed.
Judge MORRIS concurs.
Judge BROCK dissents.