{
  "id": 8621731,
  "name": "ADDIE DOUGLAS OGBURN v. STERCHI BROTHERS STORES, INC.",
  "name_abbreviation": "Ogburn v. Sterchi Brothers Stores, Inc.",
  "decision_date": "1940-11-20",
  "docket_number": "",
  "first_page": "507",
  "last_page": "509",
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    "id": 9292,
    "name": "Supreme Court of North Carolina"
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    "name": "N.C."
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      "reporter": "N.C.",
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      "cite": "74 N. C., 31",
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  "last_updated": "2023-07-14T19:22:12.547739+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "ADDIE DOUGLAS OGBURN v. STERCHI BROTHERS STORES, INC."
    ],
    "opinions": [
      {
        "text": "ScheNck, J.\nThe defendant\u2019s first assignment of error is \u201cThat the court erred in overruling the defendant\u2019s motion to dismiss on account of failure to post bond or comply with section 493, et seq., of the Consolidated Statutes of North Carolina.\u201d\nThe record discloses that the plaintiff did not give an undertaking, did not make a deposit in lieu thereof, and did not file written authority from the judge or clerk authorizing plaintiff to sue as a pauper, as by C. S., 493, required. The record further discloses that the plaintiff did not make affidavit that she was unable to comply with the preceding section as by C. S., 494, required.\nThe record contains a typewritten statement, which purports to have been signed by the plaintiff, to the effect that she is unable to comply with the requirements of C. S., 493, which statement is followed by an unsigned, unsealed and unauthenticated jurat. This does not constitute an affidavit as required by O. S., 494. An affidavit is \u201cA written or printed declaration or statement of facts, made voluntarily, and confirmed by the oath or affirmation of the party making it, taken before an officer having authority to administer such oath.\u201d Black\u2019s Law Dictionary (2d Ed.), p. 46.\nThe clerk allowed the defendant\u2019s motion to dismiss the action for the reason that the plaintiff had not complied with the requirements of O. S., 493 or 494, but upon appeal the judge reversed the action of the clerk and disallowed the defendant\u2019s motion to dismiss. In this we are of the opinion, and so hold, there was error.\nThe order allowing the plaintiff to sue as a pauper is reversed, and the case is remanded to be proceeded in according to law. The judge of the Superior Court need not necessarily dismiss the plaintiff\u2019s action by reason of there being no authentication of her attempted affidavit. He may, if he shall think proper, continue the cause until she has had reasonable time to supply the defect by swearing to her affidavit before an officer duly authorized to take and certify the same. Miazza v. Calloway, 74 N. C., 31.\nThe defendant\u2019s second assignment of error is \u201cThat the court erred in overruling the defendant\u2019s motion to strike out the subpoena and the commission granted, appointing J. H. McLain commissioner (to examine the credit manager of the defendant).\u201d We are of the opinion, and so hold, that this assignment is well taken.\nIt appears from the record that the complaint has been filed and that the answer has not been filed. The purpose of the statutes, O. S., 900 and 901, allowing an examination of an adverse party, in so far as they relate to the plaintiffs, is twofold: first, to procure information in framing the complaint, and second, to procure evidence for trial. Since the complaint has been filed the order granting the commission to examine the adverse party was not obtained for the first purpose, and since the answer has not been filed it is obvious that the application for the order for the second purpose is premature, since no issues have yet been joined. Pender v. Mallett, 123 N. C., 57. \u201cThis proceeding (for examination of adverse party) may be permitted to the plaintiffs to procure information to frame complaint, Holt v. Warehouse Co., 116 N. C., 480; or after answer is filed the plaintiff may cause the defendant to be examined to procure evidence, Helms v. Green, 105 N. C., 251; Vann v. Lawrence, 111 N. C., 32.\u201d Jones v. Guano Co., 180 N. C., 319.\nThe defendant\u2019s third assignment of error is \u201cThat the court erred in overruling the defendant\u2019s motion for a Bill of Particulars.\u201d This assignment cannot be sustained, since it does not appear from the record whether the ruling of the court was made in its discretion or as a matter of law, and, the burden of showing error being upon the appellant, it is presumed that such ruling was correctly made, that is in the discretion of the court. \u201cAn application for a bill of particulars under C. S., 534, . . . is addressed to the sound discretion of the trial court, and his ruling thereon, made in the exercise of such discretion, is not reviewable on appeal, except perhaps in extreme cases.\u201d Tickle v. Hobgood, 212 N. C., 762, and cases there cited.\nError and remanded.",
        "type": "majority",
        "author": "ScheNck, J."
      }
    ],
    "attorneys": [
      "No counsel for plaintiff, appellee.",
      "E. A. Hilker and Alvin A. London for defendant, appellant."
    ],
    "corrections": "",
    "head_matter": "ADDIE DOUGLAS OGBURN v. STERCHI BROTHERS STORES, INC.\n(Filed 20 November, 1940.)\n1. Costs \u00a7 lb\u2014\nA typewritten statement, purporting to have been signed by plaintiff, to the effect that plaintiff was unable to comply with O. S., 493, which statement is followed by an unsigned, unsealed and unauthenticated jurat is not an affidavit, and will not support an order allowing plaintiff to prosecute the action as a pauper, O. S., 494, but the deficiency does not necessarily require the dismissal of the action, since the court may give plaintiff a reasonable time to supply the deficiency.\n2. Bill of Discovery \u00a7 1\u2014\nAn order for the examination of an adverse party is improvidently granted plaintiff after complaint has been filed and before answer, since in sucb case the relief is not sought to obtain information to frame the complaint, and until answer is filed and issues joined, the application is premature for the purpose of obtaining evidence for the trial. O. S., 900, 901.\n3. Appeal and Error \u00a7\u00a7 37b, 38\u2014\nSince the burden of showing error is on appellant, when the record fails to show to the contrary, it will be presumed that appellant\u2019s motion for a bill of particulars was denied by the court in the exercise of its discretion, and not as a matter of law, which discretionary ruling is not ordinarily reviewable.\nAppeal by defendant from Bink, J., at May Term, 1940, of Mece-LENBURG.\nThis is an action to recover damages for the wrongful taking and withholding of certain personal property of the plaintiff by the defendant.\nNo counsel for plaintiff, appellee.\nE. A. Hilker and Alvin A. London for defendant, appellant."
  },
  "file_name": "0507-01",
  "first_page_order": 575,
  "last_page_order": 577
}