Dunn v. Jones
| Decision Date | 28 March 1928 |
| Docket Number | 210. |
| Citation | 142 S.E. 320,195 N.C. 354 |
| Parties | DUNN v. JONES. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Lenoir County; Cranmer, Judge.
Action by Charles F. Dunn against Victoria Jones, wherein a default judgment was entered. From judgment setting aside default plaintiff appeals. Affirmed.
Answer filed on 21st day held timely, where 20-day period had not expired when act extending time to 30 days went into effect (Pub.Laws 1927, c. 66).
Summons was issued and served June 22, 1927, and complaint filed on the same date. The plaintiff sued the defendant for the possession of the land described in the complaint. The answer was filed according to the record on June 13, 1927, 9 days before the summons was issued. It is assumed, however, upon reading the judgment, that this was an error, and that July 13th was the proper date upon which the answer was filed. On July 18, 1927, the plaintiff made a motion before the clerk for judgment by default final, upon the ground "that no defense bond nor was any answer filed within the time allowed by law." Judgment by default final was duly rendered by the clerk on the 12th day of September, 1927. The defendant excepted to the judgment, and appealed to the judge of the superior court. Notice of appeal was waived. Thereafter the cause was heard by E. H. Cranmer, judge presiding, who rendered the following judgment:
"This cause coming on to be heard before his honor, E. H. Cranmer judge, and being heard, and it appearing to the court that the defendant in the above-entitled action has a good and meritorious defense to said cause, and it further appearing to said court that the said defendant was ill, and not physically able to attend to her affairs, or to file answer in this cause, and it further appearing to said court that the said defendant was guilty of no laches on her part, but was only guilty of such conduct as amounted to excusable neglect, and it further appearing to said court that on the day following the expiration of 20 days from the date of the service of the summons in this cause the said defendant filed her answer with proper bond in the sum of $200, with sufficient surety, as is required by statute, before the plaintiff in said action moved for judgment therein, and it further appearing to said court that the time to answer did not expire until after July 1st, at which time the act extending the time to 30 days went into effect:
It is now therefore ordered, adjudged, and decreed on motion of Shaw & Jones, and J. F. Liles, attorneys for the defendant that the judgment heretofore entered by the clerk of the superior court in this cause be, and the same is hereby, declared void and set aside.
It is further ordered, adjudged, and decreed that the answer filed on behalf of the defendant in this cause together with the bond be, and the same are hereby, declared filed and allowed to be filed, and the said cause is retained to the end that the same may be heard upon its merits."
From the foregoing judgment, plaintiff appealed.
Charles F. Dunn, of Kinston, in pro. per.
Shaw & Jones, of Kinston, for appellee.
One phase of this controversy was disposed of by this court in Dunn v. Jones, 192 N.C. 251, 134 S.E. 487. This case has been referred to as the rich young ruler case. The court held that plaintiff's title was defective in the particulars pointed out in the opinion. Thereafter, on June 22, 1927, plaintiff instituted the present action in ejectment for the possession of the land. The plaintiff excepts to the judgment rendered by the court upon the ground that the trial judge had no power to set aside the judgment by default final rendered by the clerk. This contention cannot be sustained. When the judgment by default was entered by the clerk, the defendant excepted and appealed to the judge. Hence the whole case was regularly before the court upon the appeal. Both parties were thereupon fixed with notice of everything that was regularly done in the cause. Foster v. Allison Corporation, 191 N.C....
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