{ "id": 8555838, "name": "CHARLES E. CALLOWAY v. FORD MOTOR COMPANY and MATTHEWS MOTORS, INC.", "name_abbreviation": "Calloway v. Ford Motor Co.", "decision_date": "1971-06-23", "docket_number": "No. 7128SC171", "first_page": "511", "last_page": "516", "citations": [ { "type": "official", "cite": "11 N.C. App. 511" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "151 S.E. 2d 579", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1966, "opinion_index": 0 }, { "cite": "268 N.C. 668", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564697 ], "year": 1966, "opinion_index": 0, "case_paths": [ "/nc/268/0668-01" ] }, { "cite": "167 S.E. 2d 802", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1969, "opinion_index": 0 }, { "cite": "5 N.C. App. 29", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8547892 ], "year": 1969, "opinion_index": 0, "case_paths": [ "/nc-app/5/0029-01" ] }, { "cite": "120 S.E. 2d 82", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1961, "opinion_index": 0 }, { "cite": "254 N.C. 680", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627858 ], "year": 1961, "opinion_index": 0, "case_paths": [ "/nc/254/0680-01" ] }, { "cite": "41 S.E. 940", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1902, "opinion_index": 0 }, { "cite": "130 N.C. 381", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11273705 ], "year": 1902, "opinion_index": 0, "case_paths": [ "/nc/130/0381-01" ] }, { "cite": "31 S.E. 471", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1898, "opinion_index": 0 }, { "cite": "123 N.C. 229", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8658569 ], "year": 1898, "opinion_index": 0, "case_paths": [ "/nc/123/0229-01" ] }, { "cite": "31 S.E. 2d 748", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1944, "opinion_index": 0 }, { "cite": "224 N.C. 558", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8609816 ], "year": 1944, "opinion_index": 0, "case_paths": [ "/nc/224/0558-01" ] }, { "cite": "170 S.E. 2d 559", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1969, "opinion_index": 0 }, { "cite": "6 N.C. App. 576", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549572 ], "year": 1969, "opinion_index": 0, "case_paths": [ "/nc-app/6/0576-01" ] }, { "cite": "95 N.C. 317", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11274029 ], "opinion_index": 1, "case_paths": [ "/nc/95/0317-01" ] }, { "cite": "86 N.C. 26", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11272655 ], "opinion_index": 1, "case_paths": [ "/nc/86/0026-01" ] } ], "analysis": { "cardinality": 431, "char_count": 9692, "ocr_confidence": 0.579, "pagerank": { "raw": 4.8172472706271035e-08, "percentile": 0.3032495330808862 }, "sha256": "941c6f3d9a7cd4ef4343a384619e740a1f07bf59c1fb2faf428fe165c0a8d9e0", "simhash": "1:892ecfd4018d3205", "word_count": 1661 }, "last_updated": "2023-07-14T15:10:46.806740+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge Morris concurs.", "Judge Brock dissents." ], "parties": [ "CHARLES E. CALLOWAY v. FORD MOTOR COMPANY and MATTHEWS MOTORS, INC." ], "opinions": [ { "text": "HEDRICK, Judge.\nWhen 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.\nThe 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\u2019s denial of the same motion on 4 May 1970.\nThe 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: \u201cAfter 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.\u201d 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) ; Balk v. Harris, 130 N.C. 381, 41 S.E. 940 (1902).\nIf the appellant felt that Judge Hasty\u2019s 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).\nThe appellant excepted to Judge Hasty\u2019s 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).\nTherefore, we hold that Judge Ervin was precluded as a matter of law from allowing appellant\u2019s motion to amend by pleading the statute of limitations. The order of Judge Ervin is affirmed.\nAffirmed.\nJudge Morris concurs.\nJudge Brock dissents.", "type": "majority", "author": "HEDRICK, Judge." }, { "text": "Judge Brock\ndissenting.\nThe straight line approach of the majority opinion in this case brings forth principles of law with which I have no quarrel; however, there have been occurrences in this case which seem to me to create a situation which urgently demands relief. The Ford Motor Company filed its answer during the same month in 1968 in which Matthews Motors filed its answer. According to the record on appeal the matter was dormant until 27 March 1970 when Matthews Motors filed its motion for leave to amend its answer to allege the running of the statute of limitations. The motion of Matthews was denied by Judge Hasty on 4 May 1970 in the exercise of his discretion.\nAt this point the two defendants were on equal footing; neither of them had pleaded the running of the statute of limitations. However on 8 May 1970, the Ford Motor Company filed an amended answer alleging the running of the statute of limitations, the preamble to its amended answer reading as follows: \u201cThe defendant, Ford Motor Company, by leave of Court granted by the Honorable Fred H. Hasty, Judge holding the Courts of the 28th Judicial District, files its amended answer to the plaintiff\u2019s complaint as follows.\u201d\nThereafter on 14 May 1970 Matthews Motors filed an amended answer wherein it alleged the running of the statute of limitations. The preamble to the amended answer of Matthews Motors reads as follows: \u201cThe defendant, Matthews Motors, Inc., by leave of court granted by the Honorable Fred H. Hasty, Judge holding the Courts of the 28th Judicial District, files its amended answer to the plaintiff\u2019s complaint as follows.\u201d\nOn 20 May 1970 the plaintiff filed a motion to dismiss the amended answer of Matthews Motors upon the grounds that leave to amend had been denied by Judge Hasty. Judge Fate J. Beal at the 22 June 1970 session allowed the motion to dismiss, and the portion of the amended answer of Matthews Motors which pleaded the statute of limitations was stricken.\nOn 5 November 1970 plaintiff filed a motion seeking to strike the amended answer of Ford Motor Company. This motion was heard by Judge Sam J. Ervin III on 5 November 1970 and was denied.\nThe situation at this point is that one co-defendant has been allowed to successfully amend its answer to plead the running of the statute of limitations and the other co-defendant has been denied a similar privilege. To add further impetus to my feeling that the circumstances urgently demand further consideration, the record on appeal discloses that on 5 November 1970 Judge Ervin granted summary judgment in favor of Ford Motor Company upon the grounds, that the complaint affirmatively disclosed all facts necessary to establish the defendant Ford Motor Company\u2019s plea of the 3-year statute of limitations.\nDefendant Matthews Motors, again filed a motion for leave to plead, as its co-defendant had been allowed to plead, the statute of limitations. On 12 November 1970, only seven days after granting summary judgment in favor of Ford Motor Company, Judge Ervin entered the order denying Matthews Motors\u2019 motion for leave to amend its answer to plead the statute of limitations. Judge Ervin\u2019s order states: \u201c. . . that the undersigned is inclined to grant the motion of Matthews Motors, Inc. ... so that said defendant can also allege the three year Statute of Limitations against plaintiff\u2019s claim, but does not have the authority to exercise his discretion but must rule as a matter of law.\u201d It is clear that Judge Ervin felt that the order entered by Judge Hasty and the order entered by Judge Beal were binding upon him as a matter of law.\nHowever it seems to me that the circumstances had so changed since the entry of Judge Hasty\u2019s order and the entry of Judge Beal\u2019s order that Judge Ervin was authorized to act in his discretion to meet the exigencies of the case. \u201cInterlocutory judgments or orders are under the control of the court and may be corrected or changed at any time before final judgment to meet the exigencies of the case.\u201d McIntosh, N. C. Practice 2d, \u00a7 1711. Miller v. Justice, 86 N.C. 26; Maxwell v. Blair, 95 N.C. 317.\nUnder the application of Matthews Motors, for the reason that its co-defendant had been permitted to plead the statute of limitations, it seems to me that Judge Ervin could modify the previous interlocutory orders and permit the amendment. This is particularly reasonable because it is clear that no rights of third parties would be prejudiced.\nI would vote to reverse the order of Ervin, J. and allow Matthews Motors to amend its answer to allege the running of the statute of limitations. Whether it could succeed upon this plea is another matter.", "type": "dissent", "author": "Judge Brock" } ], "attorneys": [ "No counsel for plaintiff appellee.", "Van Winkle, Buck, Wall, Starnes & Hyde by O. E. Starnes, Jr., for defendant appellant." ], "corrections": "", "head_matter": "CHARLES E. CALLOWAY v. FORD MOTOR COMPANY and MATTHEWS MOTORS, INC.\nNo. 7128SC171\n(Filed 23 June 1971)\n1. Pleadings \u00a7 32\u2014 amendment of answer after time for filing answer expires\nThe 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.\n2. Courts \u00a7 9\u2014 appeal from one superior court judge to another\nNo appeal lies from one superior court judge to another.\n3. Courts \u00a7 9; Pleadings \u00a7 32\u2014 discretionary denial of motion to amend\u2014 authority of another judge to allow amendment\nWhere a superior court judge had, in his discretion, denied defendant\u2019s 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.\nJudge Brock dissenting.\nOn 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.\nThis 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\u2019s employer by the defendant Matthews.\nOn 8 November 1968, the defendant Matthews filed answer denying the material allegations of the complaint.\nOn 27 March 1970, the defendant Matthews moved to amend its answer by pleading the three-year statute of limitations in bar of the plaintiff\u2019s claim. Judge Hasty, on 4 May 1970, denied the motion to amend by an order which in pertinent part reads: \u201c[T]he Court is of the opinion, in its discretion, that said Motion should be denied.\u201d\nOn 20 October 1970, Matthews again moved to amend its answer by pleading the statute of limitations in bar of plaintiff\u2019s claim, and by an order dated 12 November 1970, Judge Ervin denied the motion, stating in pertinent part: \u201c. . . 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.\u201d\nThe defendant Matthews excepted to the order of Judge Ervin and gave notice of appeal to this Court.\nNo counsel for plaintiff appellee.\nVan Winkle, Buck, Wall, Starnes & Hyde by O. E. Starnes, Jr., for defendant appellant." }, "file_name": "0511-01", "first_page_order": 535, "last_page_order": 540 }