Harris v. Board of Education of Vance County

• Decision Date: 30 March 1940
• Docket Number: 162.
• Citation: 7 S.E.2d 538,217 N.C. 281
• Parties: HARRIS et al. v. BOARD OF EDUCATION OF VANCE COUNTY et al.
• Court: North Carolina Supreme Court

7 S.E.2d 538

217 N.C. 281

HARRIS et al. v. BOARD OF EDUCATION OF VANCE COUNTY et al.

No. 162.

Supreme Court of North Carolina

March 30, 1940

A A. Bunn and J. H. Bridgers, both of Henderson, for defendants-appellants.

Gholson & Gholson, of Henderson, and Yarborough & Yarborough of Louisburg, for plaintiffs-appellees.

SCHENCK Justice.

It is the contention of the defendants that the provision of C.S. § 515 that "within ten days after the receipt of the certificate from the supreme court if there is an appeal, if the demurrer is sustained the plaintiff may move, upon three days notice, for leave to amend the complaint," made it necessary for the plaintiffs to give three days' written notice (C.S. § 914) of their intention to lodge their motion to file additional or amended complaint.

With the contention of the defendants we cannot concur. The permissive right given the plaintiffs by the statute does not deprive them of the right to lodge any motion at term time in a cause pending before the Court.

Parties to actions are fixed with notice of all motions or orders made during the term of court in causes pending therein. Jones v. Jones, 173 N.C. 279, 91 S.E. 960; Wooten v. Drug Co., 169 N.C. 64, 85 S.E. 140; Carolina Hardware Co. v. Banking Co., 169 N.C. 744 86 S.E. 706; Coor v. Smith, 107 N.C. 430, 11 S.E. 1089; Hemphill v. Moore, 104 N.C. 379, 10 S.E. 313.

The holding that the provision of the statute (C.S. § 515) that upon the demurrer being sustained the plaintiffs may move upon three days' notice to amend does not deprive them of their right to lodge their motion to amend at term without such notice is sustained by the cases above cited. In the Jones case, supra, notwithstanding the statute, Revisal 1905 § 1566, provided "that no order allowing alimony pendente lite shall be made unless the husband shall have had five days' notice thereof," it was held that the provision applied only when the motion is heard out of term, and that the parties are fixed with notice of all motions and orders made during the term of Court in causes pending therein. In the Hemphill case, supra, notwithstanding the statute, Code, § 340 (now C.S. § 849), prescribed that "an injunction should not be allowed after the defendant shall have answered, unless upon notice, or upon an order to show cause," it was held that where a motion for injunction was made, after answer had been filed, in the course of an action in...