Opinion
(Filed 20 March, 1940.)
1. Appeal and Error § 49 — Held: Opinion reversing judgment overruling demurrer merely indicated plaintiff might move to amend under C. S., 515.
In reversing the judgment of the lower court overruling defendant's demurrer, the opinion of the Supreme Court stated that plaintiff will be given a reasonable time to amend her complaint, if she so desires. There was no motion by plaintiff in the Supreme Court to be allowed to amend. Held: The statement, certainly when read in connection with the preceding sentence of the opinion, merely indicated to plaintiff that the procedure to amend under the provisions of C. S., 515, was still open to her, and the opinion of the Supreme Court does not entitle her to file amended complaint as a matter of right without notice to defendant.
2. Pleadings § 23 —
When the Supreme Court reverses the judgment of the lower court overruling defendant's demurrer, plaintiff upon three days notice to defendant may move in the Superior Court within ten days after the opinion of the Supreme Court is received by the clerk, to be allowed to amend. C. S., 515.
APPEAL by defendant from Thompson, J., at October Term, 1939, of VANCE.
J. P. J. H. Zollicoffer for plaintiff, appellee.
A. A. Bunn, Jasper B. Hicks, and J. H. Bridgers for defendant, appellant.
CLARKSON, J., dissents.
SEAWELL and SCHENCK, JJ., concur in dissent.
Civil action to recover damage for alleged slander.
Upon former appeal, 215 N.C. 427, 2 S.E.2d 1, this Court reversed the judgment of the Superior Court of Vance County in overruling defendant's demurrer to complaint of plaintiff for that it failed to state facts sufficient to constitute a cause of action.
The record on present appeal states these facts: The opinion, certified by the clerk of Supreme Court, was received by the clerk of Superior Court of said county on 2 May, 1939. On that day plaintiff, without notice to defendant, and without leave of the court to file same, lodged in the office of the clerk of Superior Court of said county "a paper writing described as an amended complaint." Defendant, after notice dated 15 May, 1939, appeared specially to move, and on 26 May, 1939, moved to strike said "paper writing" from the files of the court for that, in the main, plaintiff has failed to move, after notice, for order permitting the filing of an amended complaint. The clerk, in the exercise of his discretion, transferred the motion to the civil issue docket to be heard by the judge at term. The motion was heard at the October Term, 1939. Defendant also moved to dismiss the action as provided by law. Both motions were denied. Thereupon, the court, in judgment entered, after reciting that "it appearing from the Supreme Court decision rendered herein that: `Plaintiff will be given reasonable time to amend her complaint, if she so desires'; and it further appearing that amended complaint was filed on May 2, 1939, the day that the opinion was certified to the clerk of the Superior Court of Vance County, North Carolina, . . . decreed that the motion to dismiss be and the same is hereby denied, and defendant is hereby given thirty (30) days to file answer."
Defendant appeals to Supreme Court, and assigns error.
From the facts set forth on this appeal, motions of defendant to strike from the record the proposed amended complaint of 2 May, 1939, and to dismiss the actions should have been granted.
When on the former appeal the judgment of the Superior Court overruling demurrer to complaint was reversed, the provisions of the statute, C. S., 515, as amended, were open to plaintiff to move to be allowed to amend her complaint. Williams v. Williams, 190 N.C. 478, 130 S.E. 113; Morris v. Cleve, 197 N.C. 253, 148 S.E. 253; McKeel v. Latham, 202 N.C. 318, 162 S.E. 747; White v. Charlotte, 207 N.C. 721, 178 S.E. 219; Oliver v. Hood, Comr., 209 N.C. 291, 183 S.E. 657; Bank v. Gahagan, 210 N.C. 464, 187 S.E. 580.
Under C. S., 515, as amended the plaintiff, upon notice of three days and within ten days after the opinion of the Supreme Court was received by the clerk of the Superior Court, could have made motion to amend. If the motion be not granted, judgment shall be entered dismissing the action. C. S., 515.
Plaintiff failed to proceed under said statute. On the other hand, she elected to act upon the conclusion that the statement in the former opinion with regard to plaintiff being given reasonable time to amend her complaint is a self-executing order. Indeed, in rendering the judgment below it appears that the court was actuated by the same impression. However, a reading of the sentence quoted from that opinion in connection with that which immediately precedes, the meaning is not in doubt. When so read, it is clear that the opinion merely indicated to plaintiff that the way was still open to her to amend her complaint, if she should so desire. Moreover, recurring to record on former appeal it appears that plaintiff made no motion in this Court to be allowed to amend. That question was not then under consideration.
For a decision on this appeal, it is unnecessary to consider other questions of law raised by the appellant.
The judgment below is
Reversed.