#### L. A. BRISTOL v. CAROLINA CLINCHFIELD AND OHIO RAILWAY CO.

(Filed 8 May, 1918.)

1. Pleadings — Indefiniteness—Motions—Courts—Discretion—Statutes.

Where the complaint alleges that the defendant railroad company’s-locomotive, on or about a given day, negligently set out fire to the damage of plaintiff’s land, and on defendant’s motion to make the complaint more certain and definite, Revisal, sec. 496, the court orders that, within, a fixed time, the complaint show “as near as practicable the hour and the direction of the train or trains”; Held, the plaintiff’s objection to the order is addressed to the sound discretion of the trial judge, the exercise-of which is not reviewable on appeal in the absence of its abuse.

2. Same — Appeal and Error.

Where a party has improvidently appealed from an order to make his pleading more definite and certain. Revisal, sec. 496, and has not ad*510dressed Ms objection to tlie sound discretion of the trial judge, based on his inability to comply, he may yet do so after the case has been remanded by the Supreme Court.

3. Pleadings — Indefiniteness — Motions — Certainty — Bill of Particulars— Statutes.

Where the complaint sets out neither a defective cause of action, nor a defective statement of a cause of action, but an uncertain or indefinite statement of a cause of action, it can only be corrected by a motion to make the pleadings more definite, Revisal, sec. 496, or by application for a bill of particulars, Revisal, sec. 494.

ActioN, heard upon motion in the cause, before Justice; J., at December Term, 1917, of Bubke.

Plaintiff seeks to recover damages for injury to his land by burning his timber, which he alleged was caused by fire negligently set out from one of defendant’s engines “on or about 28 April, 1916.” The complaint was filed at October Term, 1916, and answer 17 March, 1917, and motion was made by defendant under Revisal, sec. 496, to make the complaint more certain and definite at December Term, 1917. The court made the following order upon the motion: “In the above entitled cause, and six others against the said defendant, it is ordered, upon motion of the defendant, that the complaint be made more definite, so as to show the day, and as near as practicable the hour and the direction of travel of the train, or trains, alleged to have set out fire, as alleged in the complaint. The plaintiff to have forty days in which to file these amendments.” Plaintiff excepted and appealed.

Spainhour & Mull and S. J. Ervin for plaintiff.

No counsel for defendant.

WalKEb, J.,

after stating the case: The motion might well have been denied, because of defendant’s long delay and gross laches in moving for the amendment or for a bill of particulars, but, on the other hand, .it does not appear that the plaintiff could not have amended his allegation so as to have complied with the order. Plaintiff says, in his brief, that it is impossible to make the allegation more definite. This, however, should have been addressed to the judge, who has a large discretion in such matters. If it had appeared to him, by affidavit or otherwise, that such was the case, he doubtless would not have granted the motion, and no appeal would have been necessary to review his action, if an appeal will lie- in such a case, it being purely a matter of discretion. Allen v. R. R., 120 N. C., 548; S. v. Brady, 107 N. C., 822, 827; Conley v. R. R., 109 N. C., 692; Blackmore v. Winders, 144 N. C., 216; S. v. R. R., 149 N. C., 508.

*511It was said in 'tbe case last cited tbat tbis Court “will not review or disturb on appeal” tbe order of tbe judge unless there bas been manifest abuse of bis discretion. We find no sucb abuse. Tbe judge bas merely ordered tbat tbe amendment, in tbe particular respects set forth by him, be made “as near as practicable,” and tbe plaintiff should at least have made an attempt to comply with tbis order instead of appealing. If be found tbat be could not make tbe complaint more certain or definite, after proper effort to do so, and tbis appeared to tbe court to be tbe f'act, it would, we are sure, not have required any further amendment, and tbis course may be taken when tbe case goes back to ’the Superior Court.

A motionwas made in Conly v. R. R., supra, for a more definite statement üpon a complaint similarly worded, and tbis Court strongly intimated tbat it should have been granted. But tbe defendant was far more diligent in tbat case than tbe defendant bas been in tbis one. Sucb a motion- should be granted by tbe court with great caution, when made -on tbe eve of tbe trial, as.it causes delay and vexation, and if tbe party who makes tbe motion bas been very dilatory, bis motion should not ■commend itself to tbe favorable consideration of tbe court, if be is allowed to so move at all after answer is filed. Allen v. R. R., 120 N. C., at p. 550.

But tbe court may, ex mero motu, direct tbe pleadings to be reformed. Buie v. Brown, 104 N. C., 335; Clark’s Code, p. 207, sec. 261.

There is no reversible error in tbe ruling of tbe court, but the plaintiff will be allowed an opportunity to make bis allegation more definite, if be can, and if it reasonably appears to tbe court tbat be cannot do so, tbe cause should proceed on tbe present complaint. There is neither tbe statement of a defective cause of action nor a defective statement •of a cause of action, but an uncertain or indefinite statement of a cause •of action, which can be corrected only by motion to make tbe pleading more definite, under Revisal, sec. 496, or by application for a bill of particulars, under section 494. Cause remanded with above directions.

No error.