Batts v. Batts

102 S.E.2d 862 (1958)

248 N.C. 243

Lola Steelman BATTS v. John Nathaniel BATTS.

No. 236.

Supreme Court of North Carolina.

April 16, 1958.

*864 L. L. Davenport, Nashville, John M. King, Rocky Mount, I. T. Valentine, Jr., Nashville, for defendant appellant.

Cooley & May, Nashville, for plaintiff appellee.

WINBORNE, Chief Justice.

The motion to strike for irrelevancy and redundancy is governed by G.S. § 1-153. It provides, in pertinent part, that "if irrelevant or redundant matter is inserted in a pleading, it may be stricken out on motion of any person aggrieved thereby" and "when the allegations of a pleading are so indefinite or uncertain that the precise nature of the charge or defense is not apparent, the court may require the pleading to be made definite and certain by amendment * * *." Here the defendant, having made motion to strike in apt time, it is made as a matter of right. See Lutz Industries, Inc., v. Dixie Home Stores, 242 N.C. 332, 88 S.E.2d 333, 335, and cases cited.

"The test is, does the pleader have a right to introduce in evidence the facts to which the allegation relates? If so, the motion should be denied; if not, it should be allowed." Lutz Industries, Inc., v. Dixie Home Stores, supra, citing Daniel v. Gardner, 240 N.C. 249, 81 S.E.2d 660. However, "the denial of the motion to strike made in apt time, `is not ground for reversal unless the record affirmatively reveals these two things: (1) That the matter is irrelevant or redundant; and (2) that its retention in the pleading will cause harm, or injustice to the moving party.'" Hinson v. Britt, 232 N.C. 379, 61 S.E.2d 185.

In the light of these principles, a perusal of the complaint in instant case discloses that acts complained of began shortly after the marriage of plaintiff and defendant in 1919, and culminated in this action in 1957. The first allegation of cruel treatment and rendering of indignities in point of time was in 1919; then in the 1930s; then 1954; then 1955; and finally 1957. There is, thus, a connected chain of events from 1919 to 1957 with the exception of a period of years between the 1930s and 1954 when there are no allegations of specific acts. However there are allegations of general abuse with no dates specified scattered throughout the complaint.

So there seems to be sufficient allegation of indignities, cruelty, or abandonment from 1954 to 1957 upon which the judge could base his judgment of subsistence pendente lite. Hence the demurrer was properly overruled.

We are of opinion, however, that the allegations as to acts from 1919 to the 1930s are too remote to be material and relevant to this controversy. And, hence, they should be stricken from the complaint. Indeed, this Court feels constrained to reverse the rulings of the judge by which such allegations are retained in the pleading for the final hearing, and "to remand the cause with direction that plaintiff be *865 granted a reasonable time in which to reform and redraft her complaint," so as to contain "a plain and concise statement of the facts constituting a cause of action, without unnecessary repetition" as required by G.S. § 1-122. See Parker v. White, 237 N.C. 607, 75 S.E.2d 615. Daniel v. Gardner, supra.

Nevertheless, as the hearing was before the judge on application for allowance of subsistence and counsel fees pending final hearing, the pleading is sufficient to support the allowance of subsistence and counsel fees pendente lite. See Cameron v. Cameron, 232 N.C. 686, 61 S.E.2d 913.

Modified and affirmed.