Roberts v. Allman

• Decision Date: 28 April 1890
• Citation: 106 N.C. 391,11 S.E. 424
• Court: North Carolina Supreme Court
• Parties: Roberts et al. v. Allman et al.

11 S.E. 424

106 N.C. 391

Roberts et al.

v.Allman et al.

Supreme Court of North Carolina.

April 28, 1890.

Vacating Judgment — Irregular Summons—Excusable Neglect.

1.Under CodeN. C. § 206, providing that the complaint must be filed "on or before the third day of the term to which the action is brought, otherwise the suit may, on motion, be dismissed, " a judgment by default taken at the succeeding term, on a complaint filed during the term to which action was brought, but after the third day thereof, cannot be set aside for irregularity, though defendants by motion at the first term after the third day might have had the action dismissed.

2.A judgment will not be set aside because of irregularity in the summons, which commanded defendants to appear "on the 3d Monday after the —— Monday of November, " when defendants employed counsel to represent them at the first and only term of that court held for that year after the summons issued, since they could not have been misled by the defect in the summons.

3.An affidavit that after service of summons defendants employed counsel to represent them at the return term, that the attorney assured them that he would do so, whereupon they gave the matter no further attention, and that it was currently reported that plaintiffs had abandoned their action, does not bring the case within CodeN. C. § 274, providing that a judgment may be set aside for "excusable neglect, " on motion made within one year after its rendition.

Appeal from Buncombe superior court; Graves, J.

The summons in this case directed the defendants"to appear before the judge of the superior court at the court to be held for the county of Buncombe, at the courthouse in Asheville, on the 3d Monday after the—— Monday of November. " The summons issued 2d July, 1883, and was served personally on the defendants, who appeal, on the 15th of October.The term of the court began November 17th, and was a four-weeks term.It was the only court then provided by law for that part of the year elapsing after the issuing of the summons in July.The complaint was verified and filed December 13, 1883, during the last week of the term.At fall term, 1884, judgment by default for want of an answer was entered, and a reference ordered to state an account.Before the referee, some of the parties attended on the 19th of March, 1887, and the case was continued.On April 9, 1887, the defendants were present in person and by counsel, and the case was continued, and by consent of both parties was set for May 18, 1887.On that day, counsel for defendants, who was not the counsel who had before represented them in the cause, asked to be allowed to enter a special appearance and dismiss the proceeding for the reason "that the judgment in this case is irregular, in that it is by default, the complaint not having been filed until 13th December, 1883, when the summons was returned on the 3d Monday in November, 1883. " This motion was refused.The referee proceeded to state the account, and made his report to June term, 1887.At that term the defendants, upon notice given 23d of May, 1887, moved to set aside the judgment rendered at November term, 1884, upon the ground that it was "irregular, having been taken contrary to the course and practice of the courts, and for the further cause it is a surprise to the defendants, and oppressive to them."In support of this motion, they filed an affidavit, in which they allege "that after the service of the summons upon them, and before the court to which the same could have been returnable, — that is, if the summons could be construed to have been returnable to the 3d Monday in November next, —affiant employed M. E. Carter, Esq., to attend to the suit for them; that their said counsel assured them that the plaintiffs could not interfere with their settlement, which is referred to in affidavit of John Allman, and that he would attend to the same for them; that they were...