Strickland v. Shearon

• Decision Date: 20 April 1927
• Docket Number: (No. 259.)
• Citation: 137 S.E. 803
• Court: North Carolina Supreme Court
• Parties: STRICKLAND et al. v. SHEARON et al.

(193 N.C. 599)

137 S.E. 803

STRICKLAND et al.

v.SHEARON et al.

(No. 259.)

Supreme Court of North Carolina.

April 20, 1927.

Appeal from Superior Court, Franklin County; Bond, Judge.

Suit by Sallie S. Strickland, in her own right and as guardian for her minor children, against R. N. Shearon and others. On motion of defendant named to set aside a judgment of default and inquiry. Judgment refusing to set aside the default, and defendant named appeals. Remanded.

See, also, 191 N. C. 560, 132 S. E. 462.

G. M. Beam, of Louisburg, for appellant.

B. T. Holden and W. H. Yarborough, Jr., both of Louisburg, for appellee Strickland.

BROGDEN, J. On January 24, 1925, Sal-lie Strickland and her children instituted an action against W. H. Fuller, B. S. Alford, and R. N. Shearon in the superior court of Franklin county. The complaint alleged, in substance, that the plaintiff had instituted a special proceeding to sell the timber in controversy to the defendants Alford and Fuller. Said special proceeding was duly conducted, and E. H. Malone was appointed commissioner to make the sale, and said commissioner, pursuant to power conferred, executed and delivered a deed for said timber to the defendants Alford and Fuller. Plaintiff alleged that certain timber was included in the petition filed in the special proceeding and in the deed from Malone, commissioner, to said defendants, through mutual mistake of the parties, or by mistake of the draftsman. The plaintiff further alleged that Fuller and Alford had conveyed the timber to the defendant Shearon, and that said defendant, at the time he took the conveyance for the timber, "had notice and knowledge of the mistake which had been made and his attempt to cut and destroy the valuable young growth of timber, upon the lands is in violation of the rights of the plaintiffs and of the well-understood contract and agreement of the parties and an unwarranted trespass upon their property." Plaintiff further alleged damages for the "wrongful trespass, cutting, and removing the timber without authority, as hereinbefore alleged, in the sum of at least $800."

The plaintiff applied for and secured an order restraining the defendant from cutting said timber pending the hearing. The cause was tried at the August term, 1925, and the issues and answers of the jury thereto were as follows:

"(1) Was the true agreement between Mrs. Sallie S. Strickland and the defendants Alford and Fuller that there was being sold only the timbers within the pasture and four or five acres of old timber outside and adjoining the timber within the pasture? A. Yes.

"(2) Was there, by mutual mistake of the parties or the mistake of the draftsman, included in the petition, order, and commissioner's deed, other timbers not intended to be sold or to be included in said petition, order or deed? A. Yes."

It will be observed that there was no issue tendered as to damages.

Upon the verdict, the following judgment was rendered:.

"This cause coming on to be heard at this August term, 1925, of Franklin superior court, before Hon. Garland E. Midyette, judge presiding, and a jury, it is made to appear to the court that summons was issued on the 24th day of January, 1925, returnable on the 9th day of February, 1925, and personally served by the sheriff of Franklin county, upon all the defendants on the 26th day of January, 1925, by reading and delivering a copy of summons and com-plaint to each of them, and it further appearing that complaint herein was duly filed in the office of the clerk of the superior court of Franklin county, N. C, on the 24th day of January, 1925, and a copy thereof duly served upon each of the defendants by the sheriff of Franklin county, on the 26th day of January, 1925, and it further appearing that the defendant R. N. Shear-on failed to appear and answer or demur to said complaint within twenty days after the service thereof upon him, or at any time since:

"It is therefore by the court ordered, considered, and adjudged, that the plaintiffs are entitled to judgment by default and inquiry against the said R. N. Shearon, and that as to him all the allegations of the complaint are adjudged and decreed to be true, except as to the amount of damages alleged to have been sustained by reason of his unlawful trespass and cutting; and it is ordered that a writ of inquiry issue as to them in accordance with the practice and provisions of the statutes, said inquiry to be executed at the next civil term of Franklin superior court. The defendants W. H. Fuller and B. S. Alford having answered, the following issues were submitted to the jury: (See issues and verdict above).

"And it further appearing to the Court from the evidence, that the sum of $S50 was a wholly unfair and inadequate price for the timbers as described in the petition, orders, and deed referred to in the pleadings, and that the conveyance and sale of all of said timbers was and would be highly injurious to the interest of the infant plaintiffs in this action on whose behalf the petition in said ex parte proceeding was filed: Now, upon the coming in of the verdict, it is by the court considered, ordered, and adjudged and decreed that the original petition filed before the clerk of the superior court of Franklin county in the ex parte proceedings referred to in the pleadings and all orders and decrees made in response and pursuance of said petition and the deed executed by E. H. Malone, commissioner, to the defendants Fuller and Alford, referred to in the pleadings, be, and they are hereby, so reformed, corrected, and amended so as to authorize and convey only such timbers and trees of the dimensions set out in the commissioner's deed as were and are situate upon the lands contended for by the plaintiffs in their complaint, to wit, 'the timbers in the pasture and four or five acres of old timber outside of and adjoining the timbers within the pasture, together with such easements as are described by the commissioner's deed for the purpose of cutting and removing the same.' It is further ordered that the injunction heretofore granted in this case be made permanent. It is further ordered, adjudged, and decreed that plaintiffs recover of the defendants the costs of this action, to be taxed by the clerk."

From the judgment rendered, the defendants Fuller and Alford appealed to the Supreme Court.

The defendant Shearon did not except to the said judgment or finding of fact therein as to his failure to file an answer, nor did he appeal. The cause was argued in the Supreme Court, and the opinion of the court was delivered by Justice Connor, and is reported in 191 N. C. 560, 132 S. E. 462. When the opinion of the Supreme Court was certi fied to the superior court, the defendant Shearon made a motion to set aside the judgment rendered by Midyette, J., at the trial of the cause, upon the ground that the judgment was irregular, and upon the further ground of excusable neglect, and also that the restraining order against the defendant Shear-on be dissolved, to the end that he could proceed with the cutting of the timber.

The motion was heard before W. M. Bond, judge presiding, at the November term, 1926, and the following judgment rendered:

"This cause coming on to be heard at this November term, 1926, superior court of Franklin county, and being heard at said term by consent of all parties upon the motion of R. N. Shearon to set aside judgment by default and inquiry rendered in this cause at the August term. 1925, and it being agreed the entire record in the...