{
  "id": 8596938,
  "name": "ELEANOR G. HILDEBRAND v. SOUTHERN BELL TELEPHONE AND TELEGRAPH COMPANY",
  "name_abbreviation": "Hildebrand v. Southern Bell Telephone & Telegraph Co.",
  "decision_date": "1939-09-27",
  "docket_number": "",
  "first_page": "235",
  "last_page": "236",
  "citations": [
    {
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      "cite": "216 N.C. 235"
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    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
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    "name_long": "North Carolina",
    "name": "N.C."
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      "cite": "207 N. C., 237",
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    {
      "cite": "205 N. C., 599",
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  "analysis": {
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  "last_updated": "2023-07-14T17:26:30.134660+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "ELEANOR G. HILDEBRAND v. SOUTHERN BELL TELEPHONE AND TELEGRAPH COMPANY."
    ],
    "opinions": [
      {
        "text": "Devin, J.\nThe only questions presented by the appeal relate to the rulings of the court below on motions to strike certain allegations from the pleadings. Motions were made originally in the general county court of Buncombe County, where the cause was instituted, to strike certain allegations from the defendant\u2019s further answer and defense, and to strike certain allegations from plaintiff\u2019s reply. By appeal these motions were heard by the judge of the Superior Court, and the defendant appellant now assigns as error the ruling of the Superior Court in sustaining the county court\u2019s order striking out the third and fourth sections of tbe defendant\u2019s further answer and defense, and in refusing to strike out certain portions of tbe plaintiff\u2019s reply.\nWithout undertaking here to quote the offending allegations, it may be said briefly that the plaintiff\u2019s action is to recover damages for trespass, upon the ground that an additional burden has been imposed upon plaintiff\u2019s land abutting on a highway by the erection of defendant\u2019s poles and wires along the highway in front of plaintiff\u2019s land. Tbe defendant, among other defenses, quotes O. S., 1695, and sets out at length allegations raising the defense that it is relieved of any liability by the statute as well as by regulations of the State Highway Commission.\nThis Court has said that it would not undertake to chart the course of tbe trial in deciding motions to strike allegations from pleadings (Pemberton v. Greensboro, 205 N. C., 599, 172 S. E., 196), and that ordinarily tbe test of relevancy of a pleading was tbe right of tbe pleader to offer evidence of facts to which the allegations relate. Trust Co. v. Dunlop, 214 N. C., 196. However, without intimating an opinion upon the sufficiency as a defense of the matters set up in the paragraphs of the further answer which were ordered stricken out, or deciding their legal effect, we think the allegations should be permitted to remain in defendant\u2019s pleading, and that the court should not cut off at the outset an alleged defense which may or may not become material at the trial. The matter can be more properly presented for judicial determination when the evidence is offered at the hearing. We do not decide the ultimate questions raised by plaintiff\u2019s motion to strike, nor express any opinion on the merits. While the allegations of defendant\u2019s further-answer and defense are set out at some length, we cannot say that the prodigality of the pleadings should constitute ground for their elimination. Revis v. Asheville, 207 N. C., 237, 176 S. E., 738.\nThe defendant\u2019s motion to strike certain portions of plaintiff\u2019s reply was properly allowed, and we also think the ruling applied to paragraphs 8, 9 and 10 should have been extended to the other paragraphs of the reply. The reply should be limited to a denial of any new matter set up in the answer. Revis v. Asheville, supra; Wadesboro v. Coxe, 215 N. C., 708.\nWe conclude that portions of the defendant\u2019s further answer and defense were improperly stricken out, and that the allegations of the reply containing matters beyond the scope of a denial of the allegations of the answer should have been eliminated.\nExcept as herein modified, the judgment of the Superior Court is affirmed.\nModified and affirmed.",
        "type": "majority",
        "author": "Devin, J."
      }
    ],
    "attorneys": [
      "Sanford W. Brown and J. W. Haynes for plaintiff, appellee.",
      "J. G. Merrimon for defendant, appellant."
    ],
    "corrections": "",
    "head_matter": "ELEANOR G. HILDEBRAND v. SOUTHERN BELL TELEPHONE AND TELEGRAPH COMPANY.\n(Filed 27 September, 1939.)\n1. Trespass \u00a7 3: Pleadings \u00a7 29 \u2014 Upon motion to strike, the court will not attempt to plot the course of the trial.\nPlaintiff instituted this action for trespass against defendant telephone company upon the ground that an additional burden had been imposed on plaintiff\u2019s land abutting a highway by the erection of defendant\u2019s poles and wires. Held: The allegations of defendant\u2019s answer setting up as defenses the provision of O. S., 1695, and regulations of the State Highway Commission were improperly stricken upon plaintiff\u2019s motion, since the defenses may or may not become material at the trial, and since the court will not attempt to plot the course of the trial upon a motion to strike, but will ordinarily leave the matter for determination by rulings upon the evidence.\n2. Pleadings \u00a7\u00a7 12, 29\u2014\nA reply should be limited to a denial of any new matter set up in the answer, and defendant\u2019s motion to strike out matter beyond the scope of such denial should be allowed.\nAppeal by defendant from Pless, Jr., J., at January Term, 1939, of Buncombe.\nModified and affirmed.\nSanford W. Brown and J. W. Haynes for plaintiff, appellee.\nJ. G. Merrimon for defendant, appellant."
  },
  "file_name": "0235-01",
  "first_page_order": 301,
  "last_page_order": 302
}