Hooks v. Neighbors

• Court: North Carolina Supreme Court
• Writing for the Court: PER CURIAM.
• Citation: Hooks v. Neighbors, 211 N.C. 382, 190 S.E. 236 (N.C. 1937)
• Decision Date: 17 March 1937
• Docket Number: 241.
• Parties: HOOKS et al. v. NEIGHBORS et al.

190 S.E. 236

211 N.C. 382

HOOKS et al. v. NEIGHBORS et al.

No. 241.

Supreme Court of North Carolina

March 17, 1937

Appeal from Superior Court, Johnston County; E. H. Cranmer, Judge.

Civil action by Leland Hooks and others against E. V. Neighbors individually, and as executor of the estate of E. G. Talton Mrs. Maude Evans and another. From the judgment, Mrs. Maude Evans appeals.

Affirmed.

The judgment of the court below is as follows: "The above cause coming on to be heard before the undersigned Judge Presiding at the September Term, 1936, of the Superior Court of Johnston County, upon the motion of the defendant, Maude Evans, to set aside the judgment herein entered at the January Term, 1934, of the Superior Court of Johnston County. And it appearing to the Court that summons in said cause was duly issued and served upon the said Maude Evans, together with a copy of the petition, on January 8, 1929, and that she duly appeared and answered in said cause. And it further appearing to the Court that the matters in controversy were heard before the Clerk of the Superior Court and judgment entered in favor of the petitioners on February 11, 1929, and that the notice of appeal entered from said judgment pended until the January Term, 1934, at which time counsel for all parties appeared in open court and stated to the Court that the defendants did not intend to pursue the appeal but abandoned the same, and interposed no objection to the confirmation of the Clerk's judgment. And it appearing to the Court further that there has been no excusable neglect and that the defendant, Maude Evans, had her day in Court and that the judgment of the Clerk of the Superior Court has become final and binding on all parties. It is now therefore, ordered, adjudged and decreed that the motion to set aside the judgment be, and the same is hereby denied. E. H. Cranmer, Judge Presiding."

To the above judgment the defendant, Maude Evans, made numerous exceptions and assignments of error, mainly on the ground that the court below had no evidence on which to base the findings of fact in the judgment: (1) That there has been no excusable neglect on the part of Maude Evans; (2) that Maude Evans had her day in court; (3) that at January term, 1934, through counsel Maude Evans abandoned her appeal; (4) that the judgment of the clerk of the superior court has become final and binding on all parties; (5) that the court refused to set aside the judgment signed by Judge Clayton Moore, on account of her attorney representing adverse parties and interests; (6) that the court refused to find facts upon the evidence as requested; (7) that the court deprived the appellant of her right to prepare statement of case on appeal.

A. M. Noble, of Smithfield, for appellant Maude Evans.

Abell & Shepard, of Smithfield, for appellees.

PER CURIAM.

We do not think any of the exceptions and assignments of error made by Maude Evans can be sustained.

This was a civil action brought by plaintiffs against defendants. Maude Evans was served with summons on January 8, 1929. Petition was duly filed. The prayer was: "That some suitable, competent and fit person be appointed Trustee to fill the vacancy created by the death of the said E. G Talton, and that upon said appointment, judgment be rendered requiring E. V. Neighbors, Executor of the Estate of the said E. G. Talton, to pay over to such Trustee the sum of $3,000.00 in cash, to be held by such Trustee for the purposes and benefits of the said Trust."

The defendants, including Maude Evans, answered, practically admitting the allegations of the petition, and pray: "1. That the prayer of the petitioners be denied or postponed until the estate of E. G. Talton shall have been settled. 2. That the question of the interest on these funds which must first be separated from the assets of the estate of E. G. Talton and then disposed of or invested under the orders of this Court shall be postponed until the estate of E. G. Talton is settled."

On February 11, 1929, the clerk of the superior court rendered the following judgment: "The above entitled cause coming on to be heard before the undersigned Clerk of the Superior Court of Johnston County, upon the petition herein for the appointment of a Trustee to take over a trust fund of $3,000.00 created by the late Rhoda Pittman, under the last will and testament: And it appearing to the Court upon the hearing that E. G. Talton, deceased, was trustee for said fund under the will of Rhoda Pittman, deceased, and that the will of the said Rhoda Pittman contained no provision for the appointment of...