Scottish Bank v. Daniel

BabNhill, J. The defendants do not discuss in their briefs the exception to the judgment below based upon the contention that the amended complaint fails to comply with the order theretofore entered requiring a bill of particulars in respect to the alleged shortage. We may presume *713 that this contention has been abandoned. In any event, it is apparent that the court below was of the opinion that the plaintiff was acting in good faith in making its allegations that it could not give information more definite than that alleged in the amended complaint and it thereupon adjudged the amended complaint to be a sufficient compliance with the former order. Townsend v. Williams, 117 N. C., 330. The judgment below in this respect cannot be disturbed. When judgment was entered denying the motions of the defendants to strike from the original complaint allegations relating to the bond executed 20 September, 1935, neither defendant excepted thereto. Nor did they appeal therefrom. It thereupon became binding upon the defendants. They could not thereafter appeal to another judge of the Superior Court to review or to reverse the original order denying the motion to strike. Davis v. Land Bank, 217 N. C., 145, and cases cited; In re Adams, ante, 379. It is conceded that the amended complaint may make it appear more clearly that, upon the plaintiff’s theory of his cause of action, allegations in respect to the $15,000.00 bond are immaterial. But this is not sufficient to overcome the rule which prohibits one Judge from reversing the judgment of another. As the plaintiff has specifically alleged that the loss sustained by it was occasioned by the misconduct of the defendant Daniel during the period from 25 February, 1939, to 31 August, 1939, and this allegation is made in response to an order for a bill of particulars, the plaintiff is bound thereby and must confine its evidence thereto. Under the amended complaint it may not undertake to show a shortage occurring at some other time. McIntosh P. & P., 361; Savage v. Currin, 207 N. C., 222, 176 S. E., 569; Beck v. Bottling Co., 214 N. C., 566, 199 S. E., 924; Gruber v. Ewbanks, 199 N. C., 335, 154 S. E., 318. Even so, the plaintiff asserts that in this type of case, when the surety is unable to refute the existence of a shortage, it undertakes to prove that such shortage did not occur during the period covered by the bond sued upon; and that by its allegations in respect to the $15,000.00 bond it has merely captured the defendants’ Maginot Line and barricaded their principal line of retreat. It contends that if such defense is made by the defendants in this case, it will be entitled to recover upon the original bond, not upon evidence offered by it but upon such evidence offered by the defendants. As to this, what rights, if any, the plaintiff may have under the bond executed to the Bank of Pembroke are not now at issue. Nor need we express an opinion as to the right of the plaintiff to make the suggested use of the allegations which the defendants seek to have stricken from the complaint. Suffice it to say that the court *714 below properly declined to review or to reverse tbe former order denying tbe motion to strike these allegations from tbe complaint. Tbe judgment below is Affirmed.