#### ROBERT O. ALEXANDER v. LAWRENCE E. BROWN and CARL W. SMITH.

(Filed 24 September, 1952.)

1. Malicious Prosecution § 7—

In an action for malicious prosecution, plaintiff: is entitled to allege tlie fact of bis arrest and all circumstances of aggravation attending it as bearing upon tbe issue of damages.

2. Pleadings § 22b—

Where an amended complaint is filed after expiration of tbe time allowed in tbe order permitting the filing of tbe amendment, tbe trial court lias tbe discretionary power to enter an order extending tbe time for the filing of the amendment to tbe date of tbe bearing and overrule defendant’s motion to strike on the ground that tbe amendment was filed after the expiration of tbe time allowed. G.S. 1-163, G.S. 1-152.

3. Judgments § 17a—

Where a judicial ruling is susceptible of two interpretations, the court will adopt tbe one which makes it harmonize with tbe law properly applicable to tbe case.

4. Courts § 5 — Order allowing amendment, made after order allowing motion to strike, held not repugnant when properly construed.

Where a motion to strike a paragraph of the complaint relating to tbe second cause of action is made on tbe ground that tbe facts alleged therein by reference to paragraphs of tbe first cause of. action were irrelevant, and such motion is granted without statement of reasons, another Superior Court judge has tbe discretionary power to allow an amendment setting out the same facts in full instead of by reference to other parts of tbe complaint, wben such allegations are relevant and material, since the order granting tbe motion to strike will be interpreted as based upon error in incorporating allegations by reference contrary to Supreme Court Rule No. 20 (2) and not on the ground that the allegations v'ere immaterial, and thus the two orders harmonized, wdth the second implementing rather than repudiating the first.

Appeal by defendants from *Bobbiit, J.,*at June Term, 1952, of Bwcombe.

*213Civil action for false arrest and imprisonment and for malicious prosecution beard upon a motion to strike parts of an amendment to tbe complaint.

These are tbe salient facts :

1. Tbis cause was beard by us at tbe Fall Term, 1949. *Alexander v. Lindsey,*230 N.O. 663, 55 S.E. 2d 470.

2. Thereafter, to wit, on 7 June, 1951, tbe plaintiff Eobert 0. Alexander recast bis complaint so as to allege a first cause of action against tbe defendants Lawrence E. Brown and Carl *~W.*Smith as joint tort-feasors for false arrest and imprisonment, and a second cause of action against tbe defendant Lawrence E. Brown alone for malicious prosecution.

3. Both causes of action allegedly arose out of a series of related events, which are depicted from tbe plaintiff’s point of view in tbe opinion on tbe former appeal.

4. When be remodeled bis complaint, tbe plaintiff recounted tbe circumstances attending bis arrest and imprisonment with particularity in tbe eight paragraphs of bis first cause of action.

5. The plaintiff invoked tbe deprivation of bis liberty as an element of damage in bis second cause of action. But be did not set out in bis statement of bis second cause of action the circumstances accompanying bis arrest and imprisonment. He undertook, however, to incorporate such circumstances in bis second cause of action by inserting tbis reference to tbe allegations of bis first cause of action in tbe first paragraph of bis second cause of action: “That tbe plaintiff reiterates tbe allegations contained in paragraphs 1 through 8 of bis first cause of action.”

6. Tbe defendants thereupon moved to strike tbe first paragraph of tbe plaintiff’s second cause of action on tbe ground that the allegations thereby “made a part of said cause of action by reiteration . . . are immaterial, irrelevant, and prejudicial to tbe defendant Lawrence E. Brown.”

7. Tbe motion to strike was beard by His Honor, J. C. Eudisill, tbe presiding judge at tbe June Term, 1951, of the Superior Court of Buncombe County, who entered an order striking out “all of paragraph one of tbe second cause of action” and allowing tbe plaintiff until 6 July, 1951, as time in which to amend bis complaint.

8. Three days after tbe expiration of tbe time specified by Judge Eudi-sill, to wit, on 9 July, 1951, tbe plaintiff filed an amendment to tbe complaint in which be restated bis second cause of action in its entirety. The first eight paragraphs of tbe amendment set out in specific detail tbe plaintiff’s version of tbe facts surrounding bis arrest and imprisonment.

9. Tbe defendants thereupon made a twofold motion to strike. They moved to strike tbe amendment as a whole on tbe ground that it “was filed . . . three days after the time for filing bad expired,” and they moved to *214strike the first eight paragraphs of the amendment on the theory that their allegations “are immaterial, irrelevant, and prejudicial,” and constitute “a repetition of the paragraph . . . heretofore stricken out . . . by His Honor, J. C. Rudisill.”

10. This motion to strike was heard by His Honor, William H. Bobbitt, the presiding judge at the June Term, 1952, of the Superior Court of Buncombe County, who entered an order extending the time for filing the amendment to the date of the hearing, *i.e.,*10 June, 1952; adjudging the amendment duly filed as of that day; denying the motion to strike in its entirety; and allowing the defendants thirty days to answer, demur, or otherwise plead to the amendment. The order recites in express terms that this action was taken by Judge Bobbitt in the exercise of his discretion.

11. The defendants appealed, assigning Judge Bobbitt’s order as error.

*Guy Weaver for plaintiff, appellee.*

*J. W. Haynes for defendants, appellants.*

EeviN, J.

Since the deprivation of personal liberty suffered by a plaintiff and all circumstances of aggravation attending it constitute elements of damage in an action for malicious prosecution, the present plaintiff’s version of the facts accompanying his arrest and imprisonment is clearly germane to his second cause of action. 54 C.J.S., Malicious Prosecution, section 112.'

G.S. 1-163 provides that “the judge may . . . amend any pleading . . . by inserting . . . allegations material to the case,” and G.S. 1-152 specifies that “the judge may likewise, in his discretion, . . . allow an . . . act to be done after the time limited, or . . . may enlarge the time.” These statutory provisions conferred upon Judge Bobbitt the discretionary power to extend the time for filing the amendment to the complaint to the date specified in his order. *Smith v. Insurance Company,*208 N.C. 99, 179 S.E. 457.

The defendants insist with much earnestness and eloquence that Judge Bobbitt erred in permitting the plaintiff to file a pleading containing the first eight paragraphs of the amendment and in denying their motion to strike such paragraphs from the amendment even if he did possess discretionary power to permit the plaintiff to file an amendment to the complaint after the time limited in Judge Rudisill’s order. They advance these arguments to support their position: That when he recast his complaint, the plaintiff incorporated his version of the facts attending his arrest and imprisonment in his second cause of action by appropriate reference to the allegations of his first cause of action; that Judge Rudisill adjudged as a matter of law that the plaintiff’s version of these facts was *215immaterial and irrelevant to bis second cause of action and prejudicial to tbe defendant Lawrence E. Brown, and struck out tbe first paragraph of tbe plaintiff’s second cause of action for tbat reason; tbat tbis ruling of Judge Rudisill, whether sound or unsound, became binding on tbe parties as “tbe law of tbe case” by tbe plaintiff’s failure to have it reviewed on appeal; tbat Judge Bobbitt’s action in permitting tbe plaintiff to file a pleading containing tbe first eight paragraphs of the amendment and in refusing to strike such paragraphs from tbe amendment was tantamount to a reversal of Judge Rudisill’s ruling because tbe first eight paragraphs of tbe amendment set out in specific detail tbe plaintiff’s version of tbe facts accompanying bis arrest and imprisonment; and tbat consequently Judge Bobbitt’s action is invalidated by tbe rule applied in *Power Company v. Peacock,*197 N.C. 735, 150 S.E. 510, tbat one Superior Court judge cannot review tbe decision of another Superior Court judge upon a matter of law or legal inference.

Tbe position of tbe defendants is rendered untenable by tbe salutary principle tbat where a judicial ruling is susceptible of two interpretations, tbe court will adopt tbe one which makes it harmonize with tbe law properly applicable to tbe case. *In re Summers,*79 Ind. App. 108, 137 N.E. 291; 49 C.J.S., Judgments, section 436.

While tbe record reveals tbat tbe defendants moved to strike tbe first paragraph of tbe plaintiff’s second cause of action on tbe ground tbat tbe allegations thereby “made a part of said cause of action by reiteration . . . are immaterial, irrelevant, and prejudicial to tbe defendant Lawrence E. Brown,” it does not compel tbe conclusion tbat Judge Rudisill made tbe erroneous adjudication tbat tbe ground assigned by tbe defendants for their motion was valid in law when be struck out “all of paragraph one of tbe second cause of action” without stating any reason whatever for bis ruling. In entering bis order, Judge Rudisill heeded tbe sage advice .which tbe Earl of Mansfield is reputed to have given those who wear tbe ermine: “Consider what you think justice requires, and decide accordingly. But never give your reasons; for your judgment will probably be right, but your reasons will certainly be wrong.”

When all is said, tbe order is susceptible of tbe construction tbat Judge Rudisill struck out paragraph one of tbe second cause of action merely because tbe plaintiff’s attempt to incorporate bis version of tbe facts attending bis arrest and imprisonment in bis second cause of action by reference to tbe allegations of bis first cause of action contravened tbe rule of court which provides tbat “every pleading containing two or more causes of action shall, in each, set out all tbe facts upon which it rests, and shall not by reference to others, incorporate in itself any of tbe allegations in them, except tbat exhibits, by marks or numbers, may be referred to without reciting their contents, when attached thereto.” Su*216preme Court Rule No. 20 (2), General Statutes, Yol. 4, Appendix 1; *Cherry v. Walker,*232 N.C. 725, 62 S.E. 2d 329; *King v. Coley,*229 N.C. 258, 49 S.E. 2d 648; McIntosh on North Carolina Practice and Procedure in Civil Cases, section 433. This interpretation harmonizes the order with the legal principle that the deprivation of personal liberty suffered by the plaintiff and all circumstances of aggravation attending it constitute elements of damage in the action for malicious prosecution. It is likewise consistent with the inclusion in the order of the provision granting the plaintiff leave to amend his complaint. This provision indicates that Judge Rudisill contemplated that the plaintiff would revamp his second cause of action so as to conform the same to the rule of court.

Under this view, Judge Bobbitt’s order implements rather than repudiates Judge Rudisill’s ruling. This being true, Judge Bobbitt’s order is

Affirmed.