concurring in part and dissenting in part:
I agree with the opinion of the majority affirming the dismissal of this action as to defendants Pfizer and Roerig and affirming the denial of plaintiff’s motion to vacate Judge Collier’s order of 20 August 1968. I think the order dismissing the action against Alsop should also be affirmed.
G.S. 1A-1, Rule 3, provides that “[i]f the complaint is not filed within the period specified in the clerk’s order, the action shall abate.” This rule, effective 1 January 1970, was not in effect at the time the complaint was filed, and I agree with the conclusion of the majority that the action was still pending against Alsop when plaintiff filed his complaint on 1 August 1969. However, the essential question, in my opinion, is not whether the action was still pending at the time the complaint was filed, but whether the trial judge had the authority to allow defendant’s motion to strike the complaint on the ground that it had not been filed within the time allowed by law. An amended complaint is subject to being stricken unless filed within the time allowed. Strickland v. Jackson, 260 N.C. 190, 132 S.E. 2d 338. Certainly the same rule applies with respect to an original complaint.
It might be suggested that the situation here is parallel to a situation where answer is filed after the expiration of the time allowed. When answer has been filed, even though after time for answering has expired, the clerk is without authority, so long as the answer remains filed of record, to enter judgment by default. Bailey v. Davis, 231 N.C. 86, 55 S.E. 2d 919. However, in that case it is stated: “If it [answer] were not filed within the meaning of the law plaintiffs, upon motion so to do, might have had the answer stricken from the record, and, if such motion were allowed, to move then for judgment by default final. This was not done.”
Here the motion to strike the complaint was made and was allowed. While the trial judge unquestionably had the discretionary authority to deny defendant’s motion to strike the complaint and to extend the time for filing complaint, Deanes v. Clark, 261 N.C. 467, 135 S.E. 2d 6, he was not required as a *347matter of law to do so. On 16 September 1969, plaintiff moved for an enlargement of the time within which the complaint might be filed up to and including 1 August 1969, and for an order declaring that the complaint filed on 1 August 1969 was filed in apt time. The court, in its discretion, denied this motion and no abuse of discretion has been shown. Likewise, no abuse of discretion has been shown with respect to the court’s action in striking the complaint and dismissing the action against Alsop.