New Hanover County v. Sidbury, 599.

• Decision Date: 12 December 1945
• Docket Number: No. 599.,599.
• Parties: NEW HANOVER COUNTY et al. v. SIDBURY.
• Court: North Carolina Supreme Court

36 S.E.2d 242

225 N.C. 679

NEW HANOVER COUNTY et al.

v.SIDBURY.

No. 599.

Supreme Court of North Carolina.

Dec. 12, 1945.

Appeal from Superior Court, New Hanover County; Clawson L. Williams, Judge.

Civil action by New Hanover County and C. R. Morse, City-County Tax Collector, against Kirby C. Sidbury to recover money allegedly received by defendant to the use of plaintiff, being taxes levied against property on which defendant had a mortgage and which were not paid out of proceeds of foreclosure sale. The court entered judgment by default final, and defendant appeals.

Error and remanded.

Civil action to recover money received by defendant to use of plaintiff.

On or about May 1, 1928 defendant mortgagee foreclosed mortgage on the lands of Southern Realty & Development Co. He did not, out of the proceeds of sale, first pay plaintiff's claim or lien for taxes as provided by G.S. § 105-408. On September 16, 1944 plaintiff instituted this action to recover taxes levied against said property and unpaid at the time of sale. After complaint was filed defendant, in propria persona, filed special appearance and motion to dismiss.

At the August Term, 1945, while the motion to dismiss was pending, plaintiff in open court moved for judgment by default final. W. L. Farmer, Esq., a practicing attorney of the New Hanover Bar, then counsel for defendant, attempted to speak for and represent defendant in opposing the motion. The court thereupon found the facts, including the following:

"And it further appearing and the Court finding that the defendant attempted to and did file what he termed a special appearance, in person, in which he raised question as to merits involved in the action, which the Court holds was in fact no special appearance, nor could it be construedas such, and that no answer having been filed by the defendant, nor was the defendant present in Court when the case was called for trial; that an attorney attempted to appear for the defendant, who, upon objection being raised by the plaintiff, the Court held that the defendant could not appear in person and by attorney, and that said attorney would not be permitted to represent the defendant * * *."

It then entered judgment by default final. Thereafter defendant served notice of appeal.

G. C. McIntire, of Wilmington, for plaintiff-appellees.

Clayton C. Holmes, of Wilmington, for plaintiffs-appellees.

BARNHILL, Justice.

The defendant excepts to (1) the refusal of the court below to permit his counsel to appear for him at the hearing on the motion for judgment by default final and (2) the signing of judgment without granting defendant an opportunity to file answer. The exceptions must be sustained.

A party may appear either in person or by counsel. G.S. § 1-11. The statutory provision is in the alternative. It simply means that a litigant may not appear both in propria persona and by counsel at one and the same time. It cannot be construed to mean that he may not first appear in person and then later through counsel. Abernethy v. Burns, 206 N.C. 370, 173 S.E. 899; McClamroch v. Ice Co., 217 N.C. 106, 6 S.E.2d 850.

Oftentimes, particularly in inferior courts, a litigant undertakes to conduct his case without benefit of expert advice. He soon finds himself enmeshed in the intricacies of the law and realizes he cannot proceed intelligently and effectively without the aid of counsel. He employs an attorney who...