O'Briant v. Bennett
| Citation | 196 S.E. 336,213 N.C. 400 |
| Decision Date | 13 April 1938 |
| Docket Number | 234. |
| Parties | O'BRIANT v. BENNETT et al. |
| Court | United States State Supreme Court of North Carolina |
Appeal from Superior Court, Lee County; Clawson L. Williams, Judge.
Action by G. L. O'Briant against H. C. Bennett and another. From an adverse judgment, defendants appeal.
Affirmed.
The judgment of the court below, which indicates the controversy is as follows:
This cause being heard by the undersigned Clawson L. Williams judge presiding over the regular term of the superior court of Lee county, and said cause coming on to be heard in its regular order, as calendared, upon motion and special appearance of the defendants, Gibson Ice Cream Company and H C. Bennett; after hearing the matter the court makes the following findings of fact:
1. Summons was issued herein on the 6th day of July, 1937, from the office of the clerk of superior court of Lee county, and was served on the defendants on the 15th day of July, 1937 that at the time of the issuance of said summons no complaint was filed in the office of the clerk of this court, but an order was issued by W. G. Watson, C. S. C., extending time for filing complaint for thirty days.
2. That at the time service of summons was had upon the defendants, no copy of a complaint was served or delivered to them with copy of summons; that copy of said complaint was furnished to each of the defendants when it was filed.
3. That at the time service of summons was had upon the defendants, H. C. Bennett and Gibson Ice Cream Company, there was served a copy of an application for extension of time, stating the nature and purpose of the suit, signed, 'J. C. Pittman, Attorney for Plaintiff', and an order signed by the clerk of the superior court of Lee county purporting to extend the time for filing the complaint from the 6th day of July, 1937, to and including the 5th day of August, 1937; that the extension of time for filing complaint for more than twenty days was through inadvertence.
4. The complaint in this action was filed herein on the 4th day of August, 1937, and service of complaint upon the defendants was made as required by statute, by the clerk mailing copy to each defendant.
5. That there is now pending in the superior court of Guilford county, N. C., an action entitled, 'H. C. Bennett and Gibson Ice Cream Company v. G. L. O'Briant and Durham Herald, Inc.'
6. That the action now pending in the superior court of Guilford county, as above entitled, was instituted by summons issued on August 13, 1937, and summons and complaint therein filed and served upon the defendants therein, one of said defendants, G. L. O'Briant, being the plaintiff in the instant case; that said action arises out of the same transaction and has the same and identical subject matter; that all of the parties are the same with the exception of the addition of Durham Herald, Inc., as a party defendant; that H. C. Bennett and Gibson Ice Cream Company are parties plaintiff and G. L. O'Briant is party defendant instead of as named in this action.
7. That on the 16th day of August, 1937, motion upon a special appearance of the defendants was made and filed in this action, and copy mailed for the plaintiff to his attorney of record, Mr. J. C. Pittman, of Sanford, N. C., on said date.
8. That on the 16th day of August, 1937, W. G. Watson, clerk of superior court of Lee county, N. C., entered the following order:
'North Carolina, Lee County-In the Superior Court.
G. L. O'Briant v. Gibson Ice Cream Company and H. C. Bennett.
Order.This cause coming on to be heard before the undersigned W. G. Watson, clerk superior court of Lee county, N. C., upon motion of the defendants to dismiss this action for the causes set out in the motion; filed on August 16, 1937, and it appearing to the court that the motion should not be allowed:
Now, therefore, it is hereby ordered that the motion of the defendants to dismiss this action be, and the same is hereby denied, and the defendants are allowed thirty (30) days from the date hereof to answer or otherwise plead to the complaint.
It is further ordered that the complaint of the plaintiff in this action is hereby ordered to be filed nunc pro tunc as of July 24, 1937. This August 16, 1937. W. G. Watson, clerk superior court.'
9. That the defendants appealed to the superior court from this order; that thereafter the clerk forwarded this matter to Judge Henry A. Grady, judge presiding over the courts of the Fourth judicial district for the state of North Carolina, for a hearing upon defendants' appeal, which said hearing was set the 8th day of September, 1937, and transferred to Judge Marshall T. Spears, by Judge Grady, for hearing on October 5, 1937, and upon agreement of counsel the said cause was heard by him on said date, at which time he entered an order which remanded the matter to this court for hearing de novo, at term time, as appears from said order bearing date of October 5, 1937, which order is made a part of these findings as if fully set out herein.
10. That this cause was calendared upon the motion docket of this term of court and came on for hearing, by agreement, before the undersigned, as hereinbefore set out.
11. That this matter is now properly before this court and that in fairness and justice to the parties involved, this action should be retained upon the docket of the superior court of Lee county for trial.
Now, therefore, upon the foregoing findings of fact, and in the exercise of the discretion of the court,
It is hereby ordered that the motion of the defendants to dismiss this action be, and the same is hereby denied; and the complaint of the plaintiff in this action is hereby permitted to be filed on this date or within 10 days thereafter; and the defendants are allowed thirty days from the date of filing the complaint in which to answer or otherwise plead to the complaint.
Done at Sanford, Lee county, North Carolina, this 12th day of November, 1937. Clawson L. Williams, judge presiding over the regular term of Lee county superior court."
To the foregoing order the defendants excepted, assigned error, and appealed to the Supreme Court. The defendants made other exceptions and assignments of error and appealed to the Supreme Court. The material ones will be considered in the opinion.
Silas B. Casey, of High Point, and Sapp & Sapp, of Greensboro, for appellants.
Smith, Wharton & Hudgins, of Greensboro, and K. R. Hoyle and J. C. Pittman, both of Sanford, for appellee.
Facts: It is contended by plaintiff that this is an attempted appeal by defendants from an order entered by Williams, judge, allowing complaint to be filed by plaintiff. Plaintiff caused to be issued summons on July 6, 1937, from Lee superior court to Guilford county, and the same was served on defendants. Complaint was not filed until August 4, 1937. Copies were furnished defendants. On August 13, 1937, defendants caused summons to issue against plaintiff from Guilford county and filed complaint and caused same to be served in Lee county for precisely the same cause of action, but additional party, the Durham Herald, Inc. The first action had not been dismissed and has never been dismissed but has at all times pended in Lee county superior court since July 6, 1937. On August 16, 1937, and after having instituted their action in Guilford county, defendants moved in Lee superior court to dismiss plaintiff's action because complaint had not been filed within the time fixed by law. This motion was denied by the clerk and defendants appealed therefrom. By order of Judge Spears the whole matter was submitted to judge presiding in Lee superior court at November term, 1937. The judge presiding at such term, in the exercise of his discretion, and so stated to be in his order, allowed plaintiff ten days to file the complaint.
In the present action there is no dispute by defendants that the summons was issued in accordance with N.C.Code 1935 (Michie) § 475. It was duly served on defendants. Section 488 is as follows: "From the time of service of the summons, in a civil action, or the allowance of a provisional remedy, the court is deemed to have acquired jurisdiction, and to have control of all subsequent proceedings."
Section 505 is as follows: ...
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