Earle v. Earle

• Decision Date: 26 February 1930
• Docket Number: 57.
• Parties: EARLE v. EARLE et al.
• Court: North Carolina Supreme Court

151 S.E. 884

198 N.C. 411

EARLE v. EARLE et al.

No. 57.

Supreme Court of North Carolina

February 26, 1930

Appeal from Superior Court, Edgecombe County; Cranmer, Judge.

Action by Anna L. Earle against Robert Earle and the Globe Indemnity Company. From a judgment of the clerk of the court for the plaintiff by default and inquiry against defendant Robert Earle, the Globe Indemnity Company appealed to the superior court. From an order setting aside the default judgment plaintiff appeals.

Reversed.

Coverture is not defense in bar of running of statute of limitations.

The summons in the action was dated July 8, 1929, and service was made on defendant Robert Earle on the same date, and on insurance commissioner for the Globe Indemnity Company, July 12, 1929. Complaint was duly verified and filed before the clerk on July 8, 1929. The defendant indemnity company, by consent, was allowed until September 1, 1929, to file pleadings. The time was, by consent, extended to January 1 1930, and on October 14, 1929, plaintiff took a voluntary nonsuit as to the indemnity company. On August 9, 1929, and on October 14, 1929, judgment by default and inquiry before the clerk was rendered against defendant Robert Earle. Both judgments by default and inquiry before the clerk ordered the causes "to be transferred to the Civil Issue Docket in order that the amount of damages sustained by the plaintiff from and on account of the alleged negligence of the defendant Robert Earle, and the amount of damages which the plaintiff claims she is entitled to recover from the defendant, Robert Earle, be ascertained, determined and fixed by a jury." On October 30, 1929, the defendant indemnity company made a motion to set aside the default and inquiry judgments rendered against Robert Earle on the ground of mistake, inadvertence, surprise, or excusable neglect. On November 9, 1929, the clerk refused the motion of the indemnity company, and in the judgment set forth, among other things:

"That the defendant, Robert Earle, nor anyone in his behalf, entered any appearance or filed any pleadings or motions within the time allowed by law.

"That the consent orders entered on August 3, 1929, and August 21, 1929, granting an extension of time to the defendant Globe Indemnity Company, to file answer, applied only to such pleadings as it might wish to file in its own behalf and did not contemplate or apply to any pleadings it might desire to file in behalf of its co-defendant, Robert Earle.

"That the defendant, Globe Indemnity Company, purposely refused to enter any appearance or file any pleadings for and in behalf of Robert Earle within the time allowed by law.

"Therefore, it is by the Court ordered and decreed, that the motion of the Globe Indemnity Company filed herein be and the same is hereby denied and the two judgments heretofore entered, be and the same are hereby in all respects ratified and reaffirmed."

From this judgment, the indemnity company appealed to the superior court. The record discloses numerous affidavits introduced on the hearing of the motion in the superior court. The order setting aside the judgments of the clerk and findings of fact comprise about 15 pages of the record.

The defendant indemnity company contends: "That according to the terms of the insurance or indemnity contract or agreement entered into by and between the said Robert Earle, defendant, and Globe Indemnity Company, it was expressly stipulated and agreed, among other things, (1) that upon the occurrence of any accident to which the policy applied, the said Robert Earle should give immediate written notice thereof with the fullest information obtainable to Globe Indemnity Company, at Newark, N. J., or to one of its duly authorized representatives; that the assured shall give like notice with full particulars of any claim made on account of such accident; and that if thereafter suit is brought against the assured to enforce such claim the assured shall immediately forward to the company at Newark, N. J., every summons or other process that may be served upon the assured; (2) that the said Robert Earle should not voluntarily assume any liability or incur any expense, other than for immediate surgical relief, or settle any claim, or satisfy any judgment from which an appeal may be taken, except at his own cost; and that whenever requested by the company and at the company's expense, the said Robert Earle, defendant, should aid in securing information and evidence and the attendance of witnesses, and shall fully co-operate with the company except in a pecuniary way, in all matters which the company deems necessary in the defense of any suit or in the prosecution of any appeal." That from the report or statement filed of the accident by defendant, no liability attached to him, and furthermore the injuries to plaintiff were sustained in the state of Virginia and a wife could not in that state maintain an action against her husband for a tort committed by him on her during coverture, and further that defendant Robert Earle had not been guilty of any negligence. "That in disregard of the terms and conditions of said policy of insurance or indemnity, the said Robert Earle, defendant, did not give to Globe Indemnity Company, or to any of its duly authorized representatives, any notice of any kind that action had been instituted against him on account of the injury sustained by the plaintiff, as set forth in his report, the only knowledge this company having had of said action being from the copy of summons and complaint sent to it by the State Insurance Commissioner of North Carolina; nor did the said Robert Earle, defendant, in compliance with the terms of said policy, ever send to the home office of said company, at Newark, N. J., the summons, complaint and other process that was served upon him, or any notice whatsoever of said suit; nor did the said Robert Earle, defendant, ever file an answer or other pleadings in this cause, or do anything which would tend to free himself and reduce the damages which might be awarded in the event the plaintiff should be entitled to recover."

The judgment rendered in the court below is as follows:

"It is therefore, by the Court, in its discretion, adjudged and decreed, that the default and inquiry judgment rendered by the Clerk of the Superior Court of Edgecombe County on 9th August, 1929, in favor of the plaintiff and against the defendant, Robert Earle, be, and the same is, hereby set aside in full; and it is further so ordered, adjudged and decreed, that so much of the second judgment rendered by the Clerk of the Superior Court of Edgecombe County on 14th October, 1929, as adjudged that 'It is, therefore, on motion of Henry C. Bourne, attorney for plaintiff, ordered, adjudged and decreed, that said plaintiff recover judgment by default and inquiry against the said defendant. Robert Earle, and this cause be and the same is hereby transferred to the trial docket of the Superior Court at term, for the purpose of ascertaining the amount of damages the said plaintiff is entitled to recover against the defendant, Robert Earle,' be, and the same is hereby set aside in full. It is further ordered, adjudged and decreed that Globe Indemnity Company have until 15th January, 1930, to file answers in this cause, for and in behalf of the said Robert Earle, defendant, and for and in behalf of itself, as it may deem advisable."

The plaintiff excepted and assigned error to the judgment as signed and entered as erroneous and contrary to law, and appealed to the Supreme Court.

Other necessary facts will be set forth in the opinion.

Henry C. Bourne, of Tarboro, for appellant.

H. H. Philips, of Tarboro, for appellee Globe Indemnity Co.

CLARKSON J.

In the present action defendant Robert Earle was duly served with summons. The complaint was properly verified and filed within the time required by the statute. The court had jurisdiction of the person, and the...