Turner v. Douglass

• Decision Date: 31 January 1875
• Citation: 72 N.C. 127
• Court: North Carolina Supreme Court
• Parties: JOSIAH TURNER, JR., v. STEPHEN A. DOUGLASS.

72 N.C. 127

JOSIAH TURNER, JR.,

v.STEPHEN A. DOUGLASS.

Supreme Court of North Carolina.

January Term, 1875.

Any irregularity on the part of a Sheriff, in serving a summons, is waived by the defendant's answering, although such defendant be an infant.

An infant is properly brought into Court, just as any other defendant is. Where there is no general guardian the service of the summons, must be a personal one.

A plaintiff is not bound to move for the appointment of a guardian ad litem for an infant defendant; and his failure to do so, is not such laches as will work a discontinuance of the action.

In an action against an infant, who appears by an Attorney, an order changing the venue is not irregular or void; it is erroneous, and may be reversed or vacated upon application of the infant, upon his arriving at age.

( White v. Albertson, 3 Dev, 341; Bender v. Askew, Ibid. 149; Caldwell v. Park, Phil. 54; Dick v. Lanier, 63 N. C. Rep. 185; Skinner v. Moore 2 Dev. & Bat. 138; Marshall v. Fisher, 1 Jones, 111, cited and approved.)

CIVIL ACTION, for assault and false imprisonment, brought originally in the Superior Court of Orange county, and thence removed upon affidavit to the Superior Court of Granville, from whence it was carried to WARREN Superior Court, where it was tried at the Fall Term, 1874, by his Honor, Judge Watts.

In September, 1870, the plaintiff sued out his summons against the defendant Douglass, and W. W. Holden and one G. B. Bergen, returnable to Orange Superior Court. In this summons nothing was stated as to the infancy of Douglass, the sole defendant in this part of the case, a separation having been ordered by the Court at its trial term. The summons was returned “executed” on all the defendants; and at the return term, plaintiff filed his complaint, and the defendants, Holden and Douglass, at the same term filing their several and separate answers. Bergen filed no answer.

Nothing was done with the case, except to change the venue until Fall Term, 1873, when it was continued as to Holden, and tried by a jury as to Douglass, who was not present, nor had he been present, either in person or by attorney, since filing his answer as above stated.

The jury returned a verdict of guilty as to defendant, Douglass, and in accordance therewith, judgment was entered up.

At the ensuing Spring Term, 1874, Douglass filed the following affidavit, upon which he moved that the judgment obtained at the previous term against him, be set aside, and the suit discontinued as to him:

“GUILFORD COUNTY-- ss.

I. Stephenson A. Douglass, one of the defendants above named, being duly sworn says, that in the above entitled case, in the Superior Court of Orange county, before its removal to the county of Granville, he filed his separate answer under oath, to the plaintiff's complaint; that he employed and was represented in said cause by Hon. Samuel F. Phillips, an attorney of the Court; that defendant never employed any other attorney in said cause, and relied exclusively upon him, to conduct his defence; that affiant, so relying upon his attorney as aforesaid, was not aware that said cause would be called for trial in the Superior Court of Warren county, in the month of August, A. D. 1873, at which time the judgment of $10,000 was obtained against him by the plaintiff; and had no knowledge from any source that said cause would be reached in August, 1873, as aforesaid; that from the 5th day of July, 1873, until November of that year, affiant was in Chicago, in the State of Illinois, having gone to that city upon business of importance; that said judgment, being so obtained, in the absence of affiant, was a complete surprise, for the reasons hereinbefore mentioned and set forth.

II. Deponent further says, that when said judgment was obtained, as he is informed and believes, his said attorney, Hon. Samuel F. Phillips, was not present; and deponent, not being present himself, was not represented by counsel; deponent is further informed and believes, that his said attorney did not practice in the Courts of Granville or Warren, but that notwithstanding he did not attend or practice in said Courts, it was his intention, whenever said cause was tried, to give the same his personal attention, and took no measures to secure the services of other counsel therein for that reason; that in ample time previous to the sitting of said Warren Court, in the month of August, 1873, as aforesaid, the said attorney, deeming it possible that the said cause might be reached, took measures considered by himself to be sufficient to inform himself of the condition of the docket in said Warren Court, with a view to attend said Court, for the purpose of defending said cause in behalf of deponent, and addressed a note or letter to the Hon. Samuel W. Watts, Judge of the District in which Warren county is situated, asking for information as to the condition of said docket; that for some reason unknown to said attorney, he received no reply to his said letter, and therefore believed that the said causes would not be reached, and did not attend, for that reason, the said term of Warren Court; and deponent is informed and believes, that the first knowledge his said attorney had of the rendition of said judgment against deponent, was received in the month of October, 1873.

Deponent further says that his answer aforesaid, was drawn by his said attorney in Hillsboro, in the county of Orange, from statements made by deponent; that the first and second paragraphs of said answer, as the same appeared of record, after the removal of said cause to Warren Superior Court, truthfully represent a portion of deponent's defence, upon which he relied, but that the third paragraph of said anwer, as the same appears of record, in Warren county does not represent deponent's defence; a material one, to-wit, the word “not” after the word “did” and before the word “advise,” being omitted from said third paragraph whereas deponent meant to say and believed he had said, that he “did not” advise, command, encourage or assist said Hunnicutt, Bergin or Kirk, or any other persons under the command of them or either of them, &c., &c., to commit the injuries to the plaintiff, in the complaint set forth or any part of them. But deponents says he does not know whether the omission of the word “not” as aforesaid occurred at the time of the said answer, or subsequently, when the said answer was transcribed in removing the cause from Orange to Granville, and from Granville to Warren, but that whenever the same occurred, he avers it was a clerical error and not intended.

IV. Deponent insists that when the said cause as between the plaintiff and himself, was submitted to the jury in the said Warren Court, in the month of August last, the said answer, by the omission of the word “not” as aforesaid, did not raise the issue intended by him to be raised, and which he believed had...