#### RUTH FOX ALLRED, Executrix of MILLARD H. ALLRED, Deceased, v. HIGH POINT, RANDLEMAN, ASHEBORO AND SOUTHERN RAILROAD, and the SOUTHERN RAILWAY COMPANY.

(Filed 2 November, 1938.)

Appeal by defendants from Warticle, J., at March Term, 1938, of EaNdolph.

Affirmed.

This is an action for actionable negligence, for death of plaintiff’s testate, brought by plaintiff against tbe defendants, alleging damage. Tbe complaint was duly verified and filed at tbe time summons was issued, and a copy thereof was served with tbe summons on each of tbe defendants. Tbe defendants in apt time, before answering or demurring, and before any extension of time to plead was granted, moved before tbe clerk of tbe Superior Court, upon due notice to tbe plaintiff, to strike from tbe complaint certain allegations thereof, specifically designated in its motion to strike, reduced to writing and filed in tbe cause in accordance with tbe statute.

Tbe clerk of tbe Superior Court, upon tbe bearing before him, denied said motion and refused tbe defendants any part of tbe relief demanded. Tbe defendants, in apt time and upon due notice to tbe plaintiff, appealed to tbe judge of tbe Superior Court from tbe judgment of the clerk.

Upon such bearing bis Honor, Wilson Warlick, Judge, granted a part and denied a part of tbe relief by said motion demanded, and entered tbe order as appears in tbe record. To tbe entry of said order tbe defendants excepted, assigned error and appealed to tbe Supreme Court. This constitutes tbe defendants’ only exception and assignment of error.

Moser & Miller and J. A. Spence for plaintiff.

W. T. Joyner and II. M. Robins for defendants.

*838Pee Cubiam.

Tbe court below, upon defendants’ motion to strike certain allegations from tbe complaint, granted a part and denied a part of tbe relief demanded by said motion, Code 1935, sec. 537. We bave beard tbe able arguments of tlie attorneys for tbe litigants, read tbe record and briefs, but see no error in tbe order of tbe court below.

Affirmed.