Wall v. England

WinboeNe, J. This appeal turns in the main on a procedural question. It is observed that the judgment of Judge Rudisill, striking out the averments of defendant’s further answer on the ground that same is irrelevant, improper and prejudicial to plaintiff, was entered in term time, at a term of Superior Court, over which he was the presiding judge, with jurisdiction and power to hear and pass upon the motion to strike. G.S. 1-153. This Court held in Commrs. v. Piercy, 72 N.C. 181, that the Superior Court has power to strike out an answer whenever it appears to the satisfaction of the Court that it is irrelevant or frivolous under the statute as it then existed. C.C.P. 120. If the ruling of the Judge of Superior Court were erroneous, the remedy of defendant was to except thereto and appeal to Supreme Court. And upon failure of defendant to except and appeal the judgment becomes, not so much as res judicata, as the law of the case. Hence the judgment of Judge Rudisill was not before Judge McSwain for review. He, Judge McSwain, could not question its correctness but was bound by its terms. Indeed no appeal lies from one Superior Court judge to another. S. v. Oil Co., 205 N.C. 123, 170 S.E. 134, citing S. v. Lea, 203 N.C. 316, 166 S.E. 292; Revis v. Ramsey, 202 N.C. 815, 164 S.E. 358, and numerous other cases. “The power of one judge of the Superior Court is equal to and coordinate with that of another. A judge holding succeeding term of a Superior Court has no power to review a judgment rendered at a former term upon the ground that such judgment is erroneous.” Caldwell v. Caldwell, 189 N.C. 805, 128 S.E. 329. And the judgment of Judge Rudisill striking the averments of defendant’s further answer is not before this Court for review. Moreover, when the motion to strike the further answer repleaded by defendant came before Judge McSwain for hearing, the question before him -related to the identity of matters pleaded. He has found them so to be. And while Judge Rudisill gave defendant permission “to file answer or other pleading if he is so advised” it may not be seriously contended that this meant that defendant could reiterate verbatim or in substance the matters just ordered stricken. At least thére is nothing in the record to so indicate. Hence the judgment from which this appeal is taken will be Affirmed.