Carolina Mortgage Co v. Long Et Ux

• Decision Date: 02 May 1934
• Docket Number: No. 378.,378.
• Citation: 206 N. C. 477,174 S.E. 312
• Court: North Carolina Supreme Court
• Parties: CAROLINA MORTGAGE CO. v. LONG et ux.

174 S.E. 312

206 N. C. 477

CAROLINA MORTGAGE CO.

v.LONG et ux.

No. 378.

Supreme Court of North Carolina.

May 2, 1934.

Appeal from Superior Court, Wake County; Grady, Judge.

Action by the Carolina Mortgage Company against Dr. V. M. Long and wife. From an adverse judgment, plaintiff appeals.

Error.

Civil action to recover on promissory note, secured by deed of trust on land situate in Forsyth county.

On motion to remove cause to Forsyth county for trial, as a matter of right, there was judgment denying the motion, which was reversed on appeal, opinion filed January 10, 1934, and certified to the superior court of Wake county January 24. Carolina Mortgage Co. v. Long, 205 N. C. 533, 172 S. E. 209.

In the meantime, on January 15, the plaintiff appeared before the clerk of the superior court of Wake county, paid the costs, and moved for voluntary judgment of nonsuit, which was allowed and entered of record. Costs in the Supreme Court were paid January 19.

Thereafter, on February 2, without notice to plaintiffs counsel, judgment was tendered and signed directing the clerk of the superior court of Wake county to transfer the action, together with all necessary papers filed therein, to the superior court of Forsyth county. Immediately after the signing of this judgment, the defendants filed answer with the clerk of the superior court of Wake county setting up a counterclaim for alleged usury.

The record states that, at the time of signing the order of removal, the court was advertent to the fact that a voluntary judgment of nonsuit had previously been entered before the clerk and that no notice had been given to plaintiff's counsel of the motion then being made for judgment on the certificate.

Plaintiff appeals, assigning error.

John N. Duncan and W. G. Mordecai, both of Raleigh, for appellant.

Elledge & Wells, of Winston-Salem, for appellees.

STACY, Chief Justice (after stating the case).

Conceding without deciding, that the judgment of voluntary nonsuit taken before the clerk was ineffectual, because entered prior to receipt of opinion from this court (Piedmont Mfg. Co. v. Buxton, 105 N. C. 74, 11 S. E. 264; Atlantic Coast Line R. Co. v. Sanford, 188 N. C. 218, 124 S. E. 308; Huntley v. Express Co., 191 N. C. 696, 132 S. E. 786; Bohannon v. Trust Co., 198 N. C. 702, 153 S. E. 263), still it would seem that plaintiff's counsel was entitled to notice of application for judgment on the certificate, so that nonsuit might then be entered before the judge, if the...