Abernethy v. Burns
| Decision Date | 11 April 1934 |
| Docket Number | 268. |
| Citation | 173 S.E. 899,206 N.C. 370 |
| Parties | ABERNETHY v. BURNS et al. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Catawba County; Warlick, Judge.
Action by R. O. Abernethy against W. W. Burns and others. From an order directing case to be placed at the end of the trial docket, the plaintiff appeals.
Order modified, and, as modified, affirmed.
Civil action to recover damages for alleged (1) malicious prosecution, (2) abuse of process, (3) trespass, and (4) wrongful conversion.
The answer denies the material allegations of the complaint, sets up estoppel by judgment and the statute of limitations.
It appearing that the issues are involved, that plaintiff is accustomed to bringing suits and trying them without the aid of counsel at great loss of time to the court, that he is undertaking to prosecute the present action in propria persona, and that a trial of the cause, under these circumstances, will consume a great deal of unnecessary time the court ordered the case to be placed at the end of the trial docket, there to "remain as the last case on the trial docket if and until counsel licensed to practice in North Carolina signs his name, or their names as counsel for the plaintiff, which when done, shall be authority to the clerk to take the case from the foot of the trial calendar and place it on the docket for trial at term."
Plaintiff appeals, assigning error.
Trial court may, in its discretion, for cause shown, place case at end of trial docket.
R. O Abernethy, in pro. per.
It was clearly within the discretion of the court, for cause shown to place the case at the end of the trial docket. But it is provided by C. S. § 401 that a party may appear "either in person or by attorney in actions or proceedings in which he is interested." Thus, the provision requiring plaintiff to employ counsel would seem to be at variance with the statute.
It is the general holding that a party has the right to appear in propria persona or by counsel. This right is alternative. A party has no right to appear both by himself and by counsel. Nor should he be permitted ex gratia to do so. Talbot v. Talbot's Representatives, 2 J. J. Marsh. (25 Ky.) 3; Board of Com'rs v. Younger, 29 Cal. 147, 87 Am. Dec. 164, and note; 4 C.J. 1322; 2 R. C. L. 937.
In the instant case, the plaintiff prefers "to go it alone." This is his right. He may not get to first base but h...
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State v. Diaz, No. COA04-499 (NC 3/15/2005), COA04-499
...v. Sidbury, 225 N.C. 679, 36 S.E.2d 242 (1945); McClamroch v. Colonial Ice Co., 217 N.C. 106, 6 S.E.2d 850 (1940); Abernethy v. Burns, 206 N.C. 370, 173 S.E. 899 (1934) and stating that "a party may appear either in person or by attorney in actions or proceedings in which he is represented.......
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In re West
... ... sports, before any citizen, lawyer, or layman can be called ... out on strikes, the ball must be put over the plate ... Abernethy v. Burns, 210 N.C. 636, 188 S.E. 97, Id., ... 206 N.C. 370, 173 S.E. 899. This was the holding in ... Strickland's Case, supra, in Stiers' Case, ... ...
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Abernethy v. Burns
...of Hickory, for appellees. STACY, Chief Justice. This is the same case that was before us at the Spring term, 1934, reported in 206 N.C. 370, 173 S.E. 899, 900. There, it said in regard to the plaintiff, a layman, trying his own lawsuit: "He may not get to first base, but he is entitled to ......
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In re Taylor
... ... Mayo, 334 U.S. 672, 68 S.Ct. 1270 ... The ... cases of State v. Pritchard, 227 N.C. 168, 41 S.E.2d ... 287, and Abernethy v. Burns, 206 N.C. 370, 173 S.E ... 899, are not to be overlooked. In the former, the court ... sought to appoint counsel for the accused. He ... ...