Cook v. Am. Exch. Bank

• Decision Date: 22 October 1901
• Parties: COOK. v. AMERICAN EXCH. BANK et al.
• Court: North Carolina Supreme Court

39 S.E. 746

129 N.C. 149

COOK.

v.AMERICAN EXCH. BANK et al.

Supreme Court of North Carolina.

Oct. 22, 1901.

APPEARANCE — STIPULATION — PROCESS—DEFECTIVE SERVICE—WAIVER—TRESPASS—LIABILITY—PLEADING—DEFECTS—WAIVER.

1. Where defendants, having failed to appear during term time, entered into a stipulation with plaintiff whereby their time to take any action they might have taken before the term's close was extended, on their failure to plead thereafter judgment will be entered for plaintiff, though service on them may have been so defective as not to bring them within the court's jurisdiction.

2. Where the right of possession, and also the actual possession of land and timber thereon are vested in a trustee for the benefit of creditors, who permit others to go on such land and remove timber, such creditors, as well as the parties trespassing, are liable in damages for the value of the timber cut and removed.

3. In the absence of a demurrer to defects in a complaint, defendant will be deemed to have waived the same.

Appeal from superior court, Dare county; McNeill, Judge.

Action by P. F. Cook, trustee of Andrew Brown, a bankrupt, against the American Exchange Bank and others. From an order refusing a motion for judgment, plaintiff appeals. Reversed.

On the 23d day of February, 1900, the plaintiff sued out a summons in the superior court of Dare county against the defendants, and delivered it to the sheriff of that county, who returned it not served, because the defendants could not be found in his county. Plaintiff also applied for and obtained an order of attachment against defendants' property. Upon the return of the summons not served, plaintiff undertook to have the service made by publication, and did cause a publication to be made, citing defendants to appear at the spring term (May 7th) of the court, and during the first three days of the term filed his complaint, duly verified. But no appearance was made by defendants during the term, which continued only one week, and then expired by limitation of law. Afterwards, to wit, on the 21st day of May, the defendants through their counsel, requested and obtained from plaintiff's counsel a stipulation as follows: "It is hereby stipulated that the defendants' time is extended to and including May 31, 1900, to take any action that they, or either of them, might have taken in the above-entitled action on or prior to May 5, 1900." And subsequently, on the 29th of May, they filed a petition and bond for removal of the action to the United States circuit court, which was, however, remanded for reasons not material to be here stated. At the fall term of court, plaintiff moved for judgment by default and inquiry for want of an answer, which was resisted by defendants upon the ground that they had never been served with process, and had never voluntarily appeared. Motion for judgment denied by his honor, and plaintiff appealed.

E. F. Aydlett and F. H. Busbee, for appellant.

Busbee & Busbee, for appellees.

COOK, J. The above statement of the case recites all the facts material to aid us in determining the contention between the parties as presented by the record upon appeal. And in this court defendants further insisted that, if the court should hold that they were properly in court, by service or otherwise, the plaintiff could not recover judgment against them, for that the complaint did not state facts sufficient to constitute a cause of action; and moved to dismiss the action. As to the question raised in the record upon appeal, plaintiff contends that he is entitled to a judgment by default and inquiry for want of an answer, while defendants contend that they are not within the jurisdiction of the court for want of service of process, and have not waived such service by voluntarily appearing. The term of the court to which the summons was returnable began on May 7th, and continued only one week. After the filing of his complaint, it became incumbent upon defendants, if they had been legally served with process, to answer or demur to the complaint during that term, or to file their petition for removal to the United States circuit court before the time of answering or demur-ring expired, which was during that term. But no action or appearance whatsoever was taken or entered by defendants, and the term expired, whereby they were deprived of all rights...