King v. Rudd
| Decision Date | 06 March 1946 |
| Docket Number | No. 22.,No. 17.,No. 23.,No. 24.,24.,22.,23.,17. |
| Citation | 37 S.E.2d 116,226 N.C. 156 |
| Court | North Carolina Supreme Court |
| Parties | KING et al. v. RUDD et al. STANLEY. v. STANLEY. HOBBS. v. DREWER et al. WARD. v. WESTERN UNION TELEGRAPH CO. |
Appeal from Superior Court, Caswell County; J. W. Pless, Jr., Judge.
Action by Samuel H. King and others against Martha Rudd and others, to recover on a note and to foreclose a deed of trust, wherein J. C. Womack, administrator with will annexed of the estate of Martha Rudd, deceased, was substituted as a party defendant, and wherein W. B. Nicks and wife were permitted to make themselves parties defendant. From an order granting plaintiffs' motion to strike out answers and for judgment by default, defendants appeal.
Affirmed.
Civil action instituted 7 January, 1936, to recover on $1000 promissory note executed 20 September, 1928, by Mrs. Martha Rudd and J. F. Rudd and wife, Mary Rudd, and to foreclose deed of trust given as security for its payment. Lis pendens was duly filed at the time of the institution of the action.
On 30 January, 1936, a consent order was entered by the clerk allowing the defendants until 10 August, 1936, to file answer or demur to the complaint. No pleading has ever been filed by any of the original defendants.
On 20 December, 1941, Mrs. Martha Rudd deeded the land described in the deed of trust and notice of lis pendens to W. B. Nicks and wife, Ruth Rudd Nicks.
On 4 February, 1944, Mrs. Martha Rudd died, and J. C. Womack was appointed administrator c.t.a. of her estate.
On 4 November, 1944, upon affidavit of Ruth Nicks, the clerk signed an order setting the administrator down as a party defendant; and on the same day, an order was signed by the clerk allowing W. B. Nicks and wife, Ruth Rudd Nicks, to come in, make themselves parties defendant, and they were given 30 days in which to file answer. Answers were filed immediately by the administrator and the Nickses. These orders of the clerk were without notice to the plaintiffs.
The plaintiffs thereupon lodged motion to strike out the answers and for judgment by default final.
The defendants filed counter-motion to dismiss the action for failure to prosecute or for laches.
From judgment allowing motion of the plaintiffs, the defendants appeal, assigning as error "the signing of the foregoing judgment."
Sharp & Sharp, of Reidsville, and E. F. Upchurch, of Yanceyville, for plaintiffs, appellees.
P. W. Glidewell, Sr., of Reidsville, and R. T. Wilson, of Yanceyville, for defendants, appellants.
[l] The plaintiffs were clearly entitled to judgment by default final when the defendants omitted to answer by 10 August, 1936. G.S. § 1-211. The failure of the plaintiffs to move promptly for such a judgment did not work a discontinuance of the action. University v. Lassiter, 83 N.C. 38.
Whether the executor, who stands in the shoes of the deceased, and the Nickses, who claim under her through purchase pendente lite, should be allowed to file answers at this late date, was a matter resting in the sound discretion of the trial court. O'Briant v. Bennett, 213 N.C. 400, 196 S.E. 336; City of Washington v. Hodges, 200 N.C. 364, 156 S.E. 912; Roberts v. Merritt, 189 N.C. 194, 126 S.E. 513; United American Free Will Baptist Church v. United American Free Will Baptist Church, 158 N.C. 564, 74 S.E. 14; Wilmington v. McDonald, 133 N.C. 548, 45 S.E. 864; Byrd v. Byrd, 117 N.C. 523, 23 S.E. 324; Mcintosh on Procedure, 507. No pleading has been filed by J. F. Rudd and wife, Mary Rudd. Ruth Rudd Nicks is a daughter of the deceased.
The order of the clerk, having been entered without notice to the plaintiffs, was subject to approval or disapproval by the judge. We cannot say that error appears on the face of the record. An exception to "the signing of the judgment" presents only the face of the record for inspection or review. Rader v. Queen City Coach Co., 225 N.C. 537, 35 S.E.2d 609; Crissman v. Palmer, 225 N.C. 472, 35 S.E.2d 422; Smith v. Smith, 223 N.C. 433, 27 S.E.2d 137; Cooper v. Cooper, 21 N.C. 124, 19 S.E.2d 237; Query v. Gate City Life Ins. Co., 218 N.C. 386, 11 S.E.2d 139. Obviously, the judgment is supported by the record. Hence, the exception must fail. Ingram v. Home Mtg. Co., 208 N.C. 329, 180 S.E. 594; Wilson v. City of Charlotte, 206 N.C. 856, 175 S.E. 306.
Affirmed.
零零
Supreme Court of North Carolina.
Appeal from Superior Court, Pasquotank County; W. C. Harris, Judge.
Proceeding by Gracie Mae Stanley against Eddie L. Stanley to procure a citation for contempt of court for defaulting in payments due under terms of separation agreement. From judgment for plaintiff, defendant appeals.
Reversed.
The plaintiff brought this proceeding by petition or motion in the cause to procure a citation of the defendant for contempt of court under the following circumstances:
The plaintiff and defendant were united in marriage sometime in 1920, and livedtogether until March 1942. On April 17 of that year they entered into a separation agreement, in which it was provided that the husband should pay into the hands of the County Welfare Officer for the wife's support $8 per week, these payments to continue though the husband should later obtain a divorce.
Thereafter, on April 20, 1944, the husband, present defendant, instituted an action against the wife, plaintiff herein, for absolute divorce, on the grounds of two years separation; and decree was entered in October 1944, granting to the plaintiff (present defendant) an absolute divorce. The judgment contained the following provision: "By consent, it is further ordered, adjudged and decreed that this judgment shall in no way prejudice the defendant's rights to maintenance and support under that certain agreement between the parties hereto, dated April 17, 1942, a copy of which is held by each party."
Thereafter, on November 16, 1944, the divorced wife brought an action against this defendant in the Superior Court of Pasquotank County to enforce the terms of the separation agreement, in which she set up the same, alleged noncompliance on the part of defendant, and asked for judgment against the defendant for arrears of payments amounting to $240. The judgment of Dixon, J., based upon findings of fact, sets out the terms of the separation agreement, the above stated provision in the divorce decree, and the failure of defendant to make the stipulated payments, and concludes as follows: "It is thereupon on motion of George J. Spence, attorney for plaintiff, ordered, decreed by the Court that the plaintiff recover judgment against the defendant for the sum of two hundred and forty dollars and for the costs of this action." The judgment imposes no duties upon the defendant other than thus stated.
Thereafter, on October 4, 1945, the plaintiff filed a petition or motion in the cause, reciting the rendition of the above judgment, the findings of fact that the "defendant Eddie Stanley had failed and refused to pay into the hands of A. H. Outlaw, Welfare Officer, for delivery to Gracie Mae Stanley, the sum of $240, same being for thirty weeks at the rate of $8 per week from October 4, 1944, to May 7, 1945, " and adds "the same being for support, maintenance and alimony as set out in said judgment"; and the petition prays that a citation be served on the defendant to show cause why he shall not be adjudged in contempt of court for failure to comply with said judgment.
Citation was accordingly issued, and the matter came on for hearing before Harris, J., who rendered the following judgment:
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