Opinion
Filed 17 March, 1954.
Appeal and Error 40f — Even though motion to strike certain matter from the pleading is made as a matter of right, appellant must show error prejudicial to him from the ruling of the lower court in order to prevail on appeal.
APPEAL by individual defendants from Moore, J., December Term, 1953, WILKES. Affirmed.
Trivette, Holshouser Mitchell for plaintiff appellee.
Hayes Hayes and E. James Moore for defendant appellants.
Proceeding under Declaratory Judgment Act, G.S. ch. 1, art. 26, heard on motion to strike certain allegations contained in the further defense and counterclaim filed by the individual defendants.
Plaintiff issued and delivered to the individual defendants an automobile liability insurance policy on a certain tractor and trailer which excludes liability when either the tractor or trailer is used with another tractor or trailer not covered by the policy. The individual defendant undertook to plead a counterclaim and new matter not material to the cause of action alleged by plaintiff. Plaintiff moved to strike. The motion was allowed and the individual defendants appealed.
We have heretofore fully discussed the law as it relates to the question here presented. Any further discussion at this time could add nothing to what we have already said. It comes to this: Even though the motion is made in the court below as a matter of right, the appellant, on appeal, must show prejudicial error in the ruling thereon by the trial judge, whether the motion is allowed or denied.
The new matter alleged in the answer and stricken by the court below is foreign to the issues plaintiff seeks to raise. The alleged counterclaim is couched in language which amounts to nothing more than a conclusion. Furthermore, even if we concede that facts sufficient to constitute a cause of action are alleged, the counterclaim is one which is not properly pleadable in this cause. Schnepp v. Richardson, 222 N.C. 228, 22 S.E.2d 555; Hancammon v. Carr, 229 N.C. 52, 47 S.E.2d 614.
As no prejudicial error is made to appear, the judgment entered in the court below is
Affirmed.