Bank Of Pinehurst v. Derby
| Decision Date | 24 May 1939 |
| Docket Number | No. 596.,596. |
| Citation | 215 N.C. 669,2 S.E.2d. 875 |
| Court | North Carolina Supreme Court |
| Parties | BANK OF PINEHURST. v. DERBY. |
Appeal from Superior Court, Moore County; E. C. Bivens, Judge.
Action by the Bank of Pinehurst against R. A. Derby to recover deficiency arising from stock assessments levied under provisions of statute. From a judgment denying a motion to dissolve and dismiss warrant of attachment for want of proper service or for want of jurisdiction, and allowing motion to dismiss defendant's motion made upon special appearance and for judgment by default, defendant appeals.
Error and remanded.
Civil action to recover deficiency arising from stock assessment levied under the provisions of Michie's Code 1935, Sec. 219(f).
The plaintiff is a resident corporation; the defendant a nonresident of the State, owning real estate in Richmond County.
An order that service be made by publication and attachment was signed by the clerk on April 11, 1934. The sheriff made his return on April 17 following. On June 18, 1934, an alias summons was ordered to issue against the defendant.
Thereafter, on July 18, 1934, the defendant entered a special appearance and moved "to dissolve and dismiss warrant of attachment" for want of proper service or for want of jurisdiction.
Nearly four years later, towit, on June 23, 1938, the plaintiff filed a motion to dismiss the defendant's motion made upon special appearance and for judgment by default.
These two motions were heard together ' on July 20, 1938, and resulted in judgment by the clerk denying the defendant's motion and allowing the plaintiff's motion. On appeal to the Superior Court, the judgment of the clerk was sustained and the appeal of the defendant dismissed.
From this ruling, the defendant appeals, assigning error.
Hoyle & Edwards for appellant.
U. L. Spence, of Carthage, for appellee.
By hearing the two motions together the defendant was apparently disadvantaged, for he could not resist the plaintiff's motion in its entirety or that part asking for judgment by default, without waiving his special appearance. Scott v. Life Ass'n, 137 N.C. 515, 50 S.E. 221. Nor could he ask for time to plead to the merits without making a general appearance. Abbitt v. Gregory, 195 N.C. 203, 141 S.E. 587; Currie v. Mining Co., 157 N.C. 209, 72 S.E. 980. He gave notice of appeal from the denial of his motion, which was his right. Denton v. Vas-siliades, 212 N.C. 513, 193 S.E. 737. Cf. Johnson v. Ins. Co., 215 N.C. 120, 1...
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Blalock, In re
...jurisdiction of the court for want of valid summons or of proper service thereof. Dailey Motor Co. v. Reaves, supra; Bank of Pinehurst v. Derby, 215 N.C. 669, 2 S.E.2d 875; Four County Agricultural Credit Corp. v. Satterfield, 218 N.C. 298, 10 S.E.2d 914; Williams v. Cooper, 222 N.C. 589, 2......
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Wilson v. Thaggard
...N.C. 123, 88 S.E. 1; Burton v. Smith, 191 N.C. 599, 132 S.E. 605; Bizzell v. Mitchell, 195 N.C. 484, 142 S.E. 706; Bank of Pinehurst v. Derby, 215 N.C. 669, 2 S.E.2d 875; Four County Agricultural Credit Corp. v. Satterfield, 218 N.C. 298, 10 S.E.2d 914; Vestal v. Vending Machine Co, 219 N.C......
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Wilson v. Thaggard
... ... Smith, 191 N.C. 599, 132 S.E. 605; ... Bizzell v. Mitchell, 195 N.C. 484, 142 S.E. 706; ... Bank of Pinehurst v. Derby, 215 N.C. 669, 2 S.E.2d ... 875; Four County Agricultural Credit Corp. v ... ...
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Williams v. Cooper
...287, 186 S.E. 239; Smith v. Haughton, 206 N.C. 587, 174 S.E. 506; Suskin v. Maryland Trust Co., 213 N.C. 388, 196 S.E. 407; Bank v. Derby, 215 N.C. 669, 2 S.E.2d 875; Denton v. Vassiliades, 212 N.C. 513, 193 S.E. 737. general appearance waives any defect in the jurisdiction of the court for......