Gilchrist v. Kitchen

• Decision Date: 28 February 1882
• Court: North Carolina Supreme Court
• Parties: WILLIAM GILCHRIST v. MARY A. KITCHEN.

86 N.C. 20

WILLIAM GILCHRIST

v.MARY A. KITCHEN.

Supreme Court of North Carolina.

February Term, 1882.

CIVIL ACTION to recover land tried at Fall Term, 1881, of ROBESON Superior Court, before Graves, J.

The summons in the case was returned to spring term, 1881, and the complaint was not filed until the fourth day of the term. No answer was filed by the defendant.

At the following fall term, the defendant having still failed to file an answer, the plaintiff moved for judgment for want of an answer, and at the same time the defendant moved to dismiss the action for the reason the complaint had not been filed within the first three days of the return term.

His Honor overruled the defendant's motion, but sustained that of the plaintiff and gave judgment against the defendant for want of an answer, informing the plaintiff that no judgment for possession would be signed until it was shown to the court that the party upon whom the service of the summons was made, was in possession of the land sued for at the time of service thereof. The defendant then asked the court for leave to file an answer, which the court refused, upon the ground, that after the time which the law fixed, in which the answer must be filed, had fully elapsed, the court had no power to allow an answer to be filed.

The defendant then moved to make James A. Kitchen and his brothers and sisters parties defendant, and showed by her affidavit (upon which the motion was based) that they were in possession with her and were entitled to a homestead in the land, all being infants, and that she was only entitled to dower in said land, which had never been allotted, but the court refused the motion, and it being made to appear upon affidavit that the defendant was in possession of the land at the time the summons was served upon her, the court rendered judgment for possession and the defendant appealed.

Mr. John D. Shaw, for plaintiff .

Messrs. McNeill & McNeill, for defendant .

ASHE, J.

It has been well settled in this state that no appeal lies to this court from the exercise of a discretionary power of the superior court. But if the exercise of a discretion by that court is refused upon the ground that it has no power to grant a motion addressed to its discretion, the ruling of that court is reviewable.

In Hudgins v. White, 65 N. C., 393, it is held, “if a judge refuses to entertain a motion to set aside a judgment for any of the causes mentioned in section 133 of the Code, because he thinks he has no power to grant it, he fails to exercise the discretion confided to him by the law, and there is error.

To the same effect are Winslow v. Alexander, 2 Dev. & Bat., 9; State v. Locust, 63 N. C., 574.

Section 133 of the Code and the act of 1868-'69, amended by acts of 1870-' 71, ch. 42, and 1872-'73, ch. 14, being in pari materia must be construed together. By the act of 1868-'69 as amended, it is provided that “the plaintiff shall file his complaint in the clerk's office on or before the third day of the term to which the action is brought, otherwise the suit shall, on motion, be dismissed by the court at the costs of the plaintiff; and the defendant shall appear and demur, plead, or answer at the same term to which the summons is returnable, otherwise the plaintiff may have judgment by default, as is now allowed by law.”

It is probable...