Joyner v. Wilson Memorial Hospital, Inc., 787SC48
| Decision Date | 21 November 1978 |
| Docket Number | No. 787SC48,787SC48 |
| Citation | 38 N.C.App. 720,248 S.E.2d 881 |
| Parties | Clyde JOYNER, Jr. v. WILSON MEMORIAL HOSPITAL, INC., and Margaret A. Goodwin, Executrix of the Estate of Cleon W. Goodwin. |
| Court | North Carolina Court of Appeals |
Farris, Thomas & Farris by Thomas J. Farris, Wilson, for plaintiff-appellant.
Smith, Anderson, Blount & Mitchell by C. Ernest Simons, Jr., Raleigh, for defendant-appellee, Wilson Memorial Hospital, Inc.
Lucas, Rand, Rose, Meyer, Jones & Orcutt, by Z. Hardy Rose, Wilson, for defendant-appellee, Margaret A. Goodwin.
Amicus curiae brief submitted by Harris & Bumgardner by Tim L. Harris, Gastonia, of counsel, for North Carolina Academy of Trial Lawyers.
Amicus curiae brief submitted by Harris, Poe, Cheshire & Leager by W. C. Harris, Jr., Raleigh, for the North Carolina Hospital Ass'n.
Plaintiff first contends that the court erred in dismissing the complaint as to the Executrix Margaret A. Goodwin on the basis of improper service of process. We agree. Under North Carolina law, the filing of a final account does not discharge an executor or administrator. "The general rule is that, after an executor or administrator is appointed and qualified as such, his authority to represent the estate continues until the estate is fully settled . . . or unless the letters be revoked in a manner provided by law." Edwards v. McLawhorn, 218 N.C. 543, 546, 11 S.E.2d 562, 564 (1940). "By the weight of authority the removal or discharge of an executor or administrator is not effected by the approval of his final account without a formal order of discharge." Edwards, supra, 218 N.C. at 547, 11 S.E.2d at 565. Best v. Best, 161 N.C. 513, 77 S.E. 762 (1913). Annot., 8 A.L.R. 175 at 185 (1920). Although the executrix, Margaret A. Goodwin, had filed her final account, there were no formal orders of discharge entered by the clerk of court. Therefore, Margaret A. Goodwin was still empowered to act as executrix on the day the summons and complaint were served.
We find that the service of process was proper; the court's order dismissing the plaintiff's cause of action against the defendant executrix is reversed.
Plaintiff's second contention is that the court erred in granting defendant hospital's motion for summary judgment when the defendant had not yet answered the plaintiff's interrogatories and not filed any objection to the questions in the interrogatories. "(A)lthough unanswered interrogatories will not, in every case, bar the trial court from acting on motion for summary judgment . . . doing so prior to the filing of objections or answer to the interrogatories in the present case was improper." Lee v. Shor, 10 N.C.App. 231 at 236, 178 S.E.2d 101 at 105 (1970). See also, Bane v. Spencer, 393 F.2d 108 (1st Cir. 1968), Cert. denied 400 U.S. 866, 91 S.Ct. 108, 27 L.Ed.2d 105 (1970); Wright & Miller, Federal Practice and Procedure, § 2741 at 731 (1973). It is axiomatic that should a genuine issue of material fact exist in a dispute, the case cannot be ripe for disposition via summary judgment. "(I)t should be fundamental that a defendant who has failed to answer relevant and timely interrogatories is, at least normally, in no position to obtain summary judgment.", Bane v. Spencer, supra at 109, especially where all the facts are within the defendant's control. Wright & Miller, Supra, Quaker Chair Corp. v. Litton Business Systems, Inc., 71 F.R.D. 527 (S.D.N.Y.1976).
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...Ms. Abernathy, however, points to Ussery v. Taylor, 156 N.C. App. 684, 577 S.E.2d 159 (2003), and Joyner v. Wilson Mem'l Hosp., Inc., 38 N.C. App. 720, 248 S.E.2d 881 (1978), as requiring a continuance given the circumstances of this case. In Ussery, 156 N.C. App. at 685, 577 S.E.2d at 160,......
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