{ "id": 8660440, "name": "L. A. BRISTOL v. CAROLINA CLINCHFIELD AND OHIO RAILWAY CO.", "name_abbreviation": "Bristol v. Carolina Clinchfield & Ohio Railway Co.", "decision_date": "1918-05-08", "docket_number": "", "first_page": "509", "last_page": "511", "citations": [ { "type": "official", "cite": "175 N.C. 509" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "104 N. C., 335", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8651292 ], "opinion_index": 0, "case_paths": [ "/nc/104/0335-01" ] }, { "cite": "149 N. C., 508", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11271258 ], "opinion_index": 0, "case_paths": [ "/nc/149/0508-01" ] }, { "cite": "144 N. C., 216", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "109 N. C., 692", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8651390 ], "opinion_index": 0, "case_paths": [ "/nc/109/0692-01" ] }, { "cite": "107 N. C., 822", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11275188 ], "pin_cites": [ { "page": "827" } ], "opinion_index": 0, "case_paths": [ "/nc/107/0822-01" ] }, { "cite": "120 N. C., 548", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8659400 ], "opinion_index": 0, "case_paths": [ "/nc/120/0548-01" ] } ], "analysis": { "cardinality": 339, "char_count": 5636, "ocr_confidence": 0.479, "pagerank": { "raw": 2.436299519426501e-07, "percentile": 0.8026018119203089 }, "sha256": "2066bf50e734f87320946dcff2c73762e64eda877f176154ca41fb55a91e6206", "simhash": "1:273392e2d542abea", "word_count": 1003 }, "last_updated": "2023-07-14T19:50:36.007196+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "L. A. BRISTOL v. CAROLINA CLINCHFIELD AND OHIO RAILWAY CO." ], "opinions": [ { "text": "WalKEb, J.,\nafter stating the case: The motion might well have been denied, because of defendant\u2019s 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.\nIt was said in 'tbe case last cited tbat tbis Court \u201cwill not review or disturb on appeal\u201d 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 \u201cas near as practicable,\u201d 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 \u2019the Superior Court.\nA motionwas made in Conly v. R. R., supra, for a more definite statement \u00fcpon 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 \u25a0commend 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.\nBut tbe court may, ex mero motu, direct tbe pleadings to be reformed. Buie v. Brown, 104 N. C., 335; Clark\u2019s Code, p. 207, sec. 261.\nThere 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 \u2022of a cause of action, but an uncertain or indefinite statement of a cause \u2022of 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.\nNo error.", "type": "majority", "author": "WalKEb, J.," } ], "attorneys": [ "Spainhour & Mull and S. J. Ervin for plaintiff.", "No counsel for defendant." ], "corrections": "", "head_matter": "L. A. BRISTOL v. CAROLINA CLINCHFIELD AND OHIO RAILWAY CO.\n(Filed 8 May, 1918.)\n1. Pleadings \u2014 Indefiniteness\u2014Motions\u2014Courts\u2014Discretion\u2014Statutes.\nWhere the complaint alleges that the defendant railroad company\u2019s-locomotive, on or about a given day, negligently set out fire to the damage of plaintiff\u2019s land, and on defendant\u2019s motion to make the complaint more certain and definite, Revisal, sec. 496, the court orders that, within, a fixed time, the complaint show \u201cas near as practicable the hour and the direction of the train or trains\u201d; Held, the plaintiff\u2019s 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.\n2. Same \u2014 Appeal and Error.\nWhere a party has improvidently appealed from an order to make his pleading more definite and certain. Revisal, sec. 496, and has not addressed 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.\n3. Pleadings \u2014 Indefiniteness \u2014 Motions \u2014 Certainty \u2014 Bill of Particulars\u2014 Statutes.\nWhere 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.\nActioN, heard upon motion in the cause, before Justice; J., at December Term, 1917, of Bubke.\nPlaintiff 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\u2019s engines \u201con or about 28 April, 1916.\u201d 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: \u201cIn 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.\u201d Plaintiff excepted and appealed.\nSpainhour & Mull and S. J. Ervin for plaintiff.\nNo counsel for defendant." }, "file_name": "0509-01", "first_page_order": 563, "last_page_order": 565 }