#### WILLIAM A. TILLIS, SR., v. CALVINE COTTON MILLS, INC., a Corporation, and LEON SALKIND.

(Filed 12 June, 1953.)

1. Appeal and Error § 2: Bill of Discovery § lc—

Wlien motion for examination of the adverse party as a matter of right after the pleadings have been filed on both sides is supported by affidavit which meets statutory requirements, G.S. 1-568.9 (c), G.S. 1-568.11, an appeal from order allowing the motion is premature and will be dismissed.

2. Bill of Discovery § lc: Pleadings § 26: Election of Remedies § *5%*—

A bill of particulars and a bill of discovery are not inconsistent remedies, and therefore the denial of an application for a bill of particulars does not preclude the same party from thereafter moving for leave to examine the adverse party in regard to the same matters. G.S. 1-150, G.S. 1-568.1 *et seq.*

Appeal by plaintiff from *Sharp, Special Judge,*at 5 January, 1953, Regular Civil Term of MecexeNbubg.

*125Civil action to recover for alleged breach of contract, beard below on motion of tbe defendants for an order to examine tbe plaintiff adversely for tbe purpose of obtaining evidence to be used at tbe trial.

In September, 1950, after tbe pleadings were filed on botb sides, tbe plaintiff was examined adversely by tbe defendants. From tbis examination, tbe narrative of wbicb covers nearly 19 pages of tbe record, it appears tbat tbe plaintiff was examined in detail as to botb tbe terms of tbe alleged contract and tbe particulars respecting breach and tbe question of damages.

Tbe case came on for trial in November, 1951. After tbe plaintiff bad been examined somewhat in detail, a question arose respecting tbe competency of certain proffered testimony relative to loss of profits caused by tbe defendants’ alleged breach of tbe contract. Thereupon Judge Patton, then presiding, being of tbe opinion tbat in order to render such evidence admissible it was necessary tbat tbe complaint be amended, ordered a mistrial and a new trial, and granted tbe plaintiff leave to amplify bis complaint by stating more minutely bis claim for special damages. And this was done by amendment filed 5 March, 1952.

In April, 1952, tbe defendants moved tbe court for a bill of particulars to require tbe plaintiff to amplify further bis allegations of damages. Tbe motion was denied by Judge Moore. From tbis discretionary ruling, tbe defendants appealed. Tbe appeal was dismissed by *per curiam*opinion of this Court filed 19 November, 1952 (236 N.C. 533, 73 S.E. 2d 296).

Thereafter tbe defendants answered, denying tbe material allegations of tbe complaint as amended.

On 2 January, 1953, tbe defendants, on *ex parte*application, obtained leave of tbe clerk to examine tbe plaintiff adversely on interrogatories wbicb were submitted with tbe motion. Tbe plaintiff immediately moved tbe clerk to vacate tbe order of examination. A bearing ensued in which botb sides participated. It was made to appear tbat practically all tbe interrogatories submitted by tbe defendants are couched in tbe precise language of tbe defendants’ previous application for bill of particulars, and tbat tbe interrogatories are calculated to elicit substantially tbe same information denied tbe defendants on application for bill of particulars. Tbe clerk found tbat tbe amendment to tbe complaint and tbe previous examinations of tbe plaintiff afforded tbe defendants adequate information to defend tbe action, and thereupon entered an order setting aside tbe former order and denying tbe defendants’ motion for further examination of tbe plaintiff.

From tbis order tbe defendants appealed to tbe Superior Court. There Judge Sharp, being of tbe opinion tbat tbe defendants were entitled to examine tbe plaintiff as a matter of right, entered an order reversing tbe *126latter ruling of the clerk and allowing the examination as originally ordered.

From the order so entered the plaintiff appealed to this Court, assigning errors.

*G. T. Carswell, B. Irvin Boyle, and James F. Justice for plaintiff, appellant.*

*Clayton & Sanders for defendants, appellees.*

JOHNSON, J.

This proceeding to examine the plaintiff before trial was under the procedure prescribed by Chapter 760, Session Laws of 1931, now codified as G.S. 1-568.1 through 1-568.27. This Act repealed the former statutes dealing with examination of parties before trial (G.S. 1-568 through 1-576).

The statute directs that a party may be examined adversely for the purpose of obtaining evidence to be used at the trial, G.S. 1-568.3 (2) ; and where the pleadings have been filed on both sides, an examination may be had as “a matter of right.” G.S. 1-568.9 (c).

, Here the pleadings are in on both sides. The defendant’s preliminary affidavit on which the order below is based meets statutory requirements. G.S. 1-568.11. See also *Douglas v. Buchanan,*211 N.C. 664, 191 S.E. 736.

Therefore under our usual procedure the appeal will be dismissed as premature. *Abbitt v. Gregory,*196 N.C. 9, 144 S.E. 297. See also *Brown v. Clement Co.,*203 N.C. 508, 166 S.E. 515; *Whitehurst v. Hinton,*184 N.C. 11, 113 S.E. 500; *Monroe v. Holder,*182 N.C. 79, 108 S.E. 359; *Pender v. Mallett,*122 N.C. 163, 30 S.E. 324; *Holt v. Warehouse,*116 N.C. 480, 21 S.E. 919; *Vann v. Lawrence,*111 N.C. 32, 15 S.E. 1031; *Shelby v. Lackey,*235 N.C. 343, 69 S.E. 2d 607; *City of Raleigh v. Edwards,*234 N.C. 528, 67 S.E. 2d 669.

A consideration of the appeal on its merits as in *Knight v. Little,*217 N.C. 681, 9 S.E. 2d 377, would avail the plaintiff no substantial relief. A bill of particulars and discovery under our statutes are not inconsistent remedies; rather, they are concurrent and cumulative remedies. G.S. 1-150 and G.S. 1-568.1 *et seq.;*71 C.J.S., Pleading, Sections 376, 388 (p. 816), and 393 (p. 825). Therefore the defendants were not put to an election in applying for a bill of particulars. *Randle v. Grady,*228 N.C. 159, 45 S.E. 2d 35; 18 Am. Jur., Election of Remedies, Sections 9 through 13. Moreover, it is noted that some, at least, of the interrogatories submitted by the defendants as the basis for their motion for leave to examine the plaintiff would seem to be unobjectionable. See *Grandy v. Walker,*234 N.C. 734, 68 S.E. 2d 807; 27 C.J.S., Discovery, Section 61. note 65.

*127Resides, the provisions of G.S. 1-568.17 and 1-568.18 and related statutes furnish the plaintiff adequate protection against harassment or the hazard of untoward consequences on refusal to answer such of the interrogatories as appear to be unduly repetitious or beyond the proper scope of examination. See also G.S. 1-568.23 (d).

Appeal dismissed.