No. 7226SC640
(Filed 20 December 1972)
Judgments § 1; Pleadings §§ 32, 41— pending motions to strike and to amend — judgment entered on merits
Where the case had been placed on the motion calendar for disposition of a motion by defendant to strike portions of the complaint and a motion by plaintiff to amend the complaint, the court erred in entering a judgment on the merits.
Appeal by defendant from Friday, Judge, 27 April 1972 Schedule “B” Session of Superior Court held in Mecklenburg County.
Plaintiffs instituted this action for declaratory judgment, seeking to determine the rights of the parties under a certain option to lease allegedly accepted by defendant. Defendant filed a motion to strike certain parts of the complaint. Plaintiffs filed a motion to amend their complaint. No orders were entered *158disposing of the pending motions. On appeal, and as appears in the statement of the case on appeal, appellant argued and appellee conceded: that the case had been placed on the motion calendar for disposition of the pending motions; that the judge advised the parties that he would take the files and advise counsel at a later date; that subsequently counsel received a judgment purporting to dispose of the case on its merits. From the entry of this judgment, defendant appealed.
Hovis & Hunter by John N. Hunter for plaintiff appellees.
Newitt & Newitt by John G. Newitt, Sr., for defendant appellant.
Although we do not doubt that the respected trial judge was of the opinion that the cause was before him for final disposition, it clearly appears that the case was not yet ripe for adjudication on the merits. The order from which defendant appeals is vacated and the cause is remanded to the Superior Court of Mecklenburg County.
Vacated and remanded.
Judges Hedrick and Graham concur.