Vass v. Peoples' Bldg. & Loan Ass'n
| Decision Date | 31 October 1884 |
| Citation | 91 N.C. 55 |
| Court | North Carolina Supreme Court |
| Parties | W. W. VASS and others v. PEOPLES' BUILDING & LOAN ASSOCIATION and others. |
OPINION TEXT STARTS HERE
APPEAL from an order, setting aside a judgment, granted at Fall Term, 1884, of WAKE Superior Court, by Gudger, J.
The summons in this case was made returnable to fall term of 1877 of the superior court of Wake county. At that term the plaintiffs filed the complaint, but the defendants, first made parties defendant, did not file any answer at that term or afterwards.
At spring term, 1878, the plaintiffs moved for leave to make additional parties defendant, naming them severally, and among them are the parties who moved to set aside the judgment presently to be mentioned. The court granted the motion, and ordered “that the summons and complaint be amended accordingly, and that the clerk issue summons to said parties.” Accordingly, a summons was issued and executed and the additional parties therein named were commanded to appear in court “on the 4th Monday in June, 1878, and answer the complaint which will be deposited in the office of the clerk of the superior court of said county within the time prescribed by law, and let the said defendants take notice, that if they fail to answer the said complaint within the time prescribed by law, the plaintiffs will apply to the court for the relief demanded in the complaint.”
The plaintiffs failed to amend the complaint filed, or to file any amended or additional complaint.
Afterwards, at February term, 1880, the court gave “judgment by default” in favor of the plaintiffs, “according to their complaint against the defendants, holders of cancelled shares,” &c.
It does not appear that any further action was taken until August term, 1881. At that term the parties named in the order of the court set forth below, moved to set aside said judgment by default as to themselves, on the ground that the plaintiffs had filed no complaint as to them, and they were not called upon or bound in law to answer the complaint originally filed at the appearance term. The motion thus made was continued from term to term until the August term, 1884. At that term the court made this order: From this judgment the plaintiffs appealed.
Messrs. Haywood & Haywood and Gatling & Whitaker, for plaintiffs .
Messrs. Fuller & Snow and E. C. Smith, for defendants .
MERRIMON, J., after stating the case.
It will be observed that the motion to set aside the judgment in this case, was not based upon alleged “mistake, inadvertence, surprise or excusable neglect,” on the part of the appellees, but upon the ground of its alleged irregularity.
An irregular judgment may be set aside at any time within a reasonable period, this depending on the circumstances of the case, and the party complaining is not bound to move in such respect within a year next after it has been entered, as in case of “mistake, inadvertence,” &c.
An irregular judgment is one given contrary to the method of procedure and the practice under it, allowed by law. As, if judgment should be given against an infant, no guardian having been appointed or appearing to represent him and take care of his interests in that behalf; or, where the court gave judgment without the intervention of a jury in a case where the party complaining was entitled to a jury trial and did not waive his right thereto; or, where a judgment was prematurely entered by default; or, where it was the duty of the plaintiff to give notice of the taxing of costs, and failed to give such notice, and took judgment. In such and like cases, the judgment is irregular, and upon proper application of the party injured the court would set it aside for such irregularity. Keaton v. Banks, 10 Ired., 381; Dick v. McLaurin, 63 N. C., 185; Cowles v. Hayes, 69 N. C., 410; Freeman on Judgments, § 97.
Then, is the judgment in question irregular in a material respect? We think it is; and that is so because it was without any proper pleading on the part of the plaintiffs that put the appellees to any defence they might be able and see fit to make.
Regularly, a civil action must be commenced by a summons, and the defendant is summoned to appear at the next ensuing term of the court after its issue, and “answer the complaint of the plaintiff,” and he is notified in the summons, “that if the defendant shall fail to answer the complaint within the time specified, the plaintiff will apply to the court for the relief demanded” in the complaint. THE CODE, §§ 200, 213. The plaintiff must file his complaint in the clerk's office on or before the third day of the term to which the summons is made returnable, the defendant having been summoned; and at the same term, the complaint being filed, the defendant must appear and demur to, or answer it, and the plaintiff must at that term join issue upon the demurrer, or reply to the answer, as the case may require, and the issues raised by the pleadings must stand for trial at the next term thereafter. THE CODE, §§ 206, 207, 208. This, of course, is subject to the power of the court to enlarge the time for pleading and make all proper orders in respect thereto.
These provisions of THE CODE plainly contemplate that in the orderly course of procedure, the plaintiff shall, upon bringing the defendant into court, plead, that is, file a complaint setting forth in apt terms his cause of action against the defendant, so that the latter may know what it is, and consider whether he will admit the same, or in any proper way make defence thereto. The plaintiff must plead at the appearance term, or else, at that or a subsequent term, in the absence of a complaint, the defendant may move for judgment of non pros.
Ordinarily the complaint filed applies and has reference only to the party or parties before the court at the time of filing it. They are required to plead at the appearance term, or judgment final for want of a proper pleading, may in some cases be taken against them, and in others an interlocutory judgment may be taken.
The plaintiff may obtain leave in a proper case, to make additional parties ...
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Moore v. Humphrey
...a jury, in a case where the party complaining was entitled to a jury trial, and did not waive his right to the same. Vass v. People's Building & Loan Association, 91 N.C. 55; McKee v. Angel, 90 N.C. 60. An erroneous judgment is one rendered contrary to law. The latter cannot be attacked col......
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Mills v. Richardson, 457
...jury, in a case where the party complaining was entitled to a jury trial, and did not waive his right to the same. Vass v. [ People's Building & Loan] Association, 91 N.C. 55; McKee v. Angel, 90 N.C. 60. An erroneous judgment is one rendered contrary to law. The latter cannot be attacked co......
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Ealy v. Mcgahen.
...of a jury in a case where the party complaining was entitled to a jury trial, and did not waive his right to the same. Vass v. Building Association, 91 N. C. 55; McKee v. Angel, 90 N. C. 60. An erroneous judgment is one rendered contrary to law. The latter cannot be attacked collaterally at......
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...N.C. 424, 184 S.E. 36; Moore v. Packer, 174 N.C. 665, 94 S.E. 449; Glisson v. Glisson, 153 N.C. 185, 69 S.E. 55; Vass v. People's Building and Loan Association, 91 N.C. 55. A judgment rendered in violation of the rules respecting procedural notice is irregular. In consequence, a judgment co......