Wynne v. Conrad

• Decision Date: 19 November 1941
• Docket Number: 452.
• Citation: 17 S.E.2d 514,220 N.C. 355
• Parties: WYNNE v. CONRAD.
• Court: North Carolina Supreme Court

17 S.E.2d 514

220 N.C. 355

WYNNE v. CONRAD.

No. 452.

Supreme Court of North Carolina

November 19, 1941

[Copyrighted Material Omitted]

The following judgment was rendered in the Court below "This cause coming on to be heard and being heard before Honorable Walter J. Bone, Judge, upon motion of J. G. Mills attorney for plaintiff, to set aside the judgment of nonsuit rendered herein at the Second March Term 1935, the defendant being represented by J. L. Morehead, attorney, and it appears upon examination of the record and the affidavit filed herein, and after hearing and argument of the attorneys for the plaintiff and the defendant, that this action was instituted by issuing summons and filing complaint on the 29th day of September 1930, and the summons, with a copy of the complaint, were served on the defendant on the 30th day of September 1930, and that on the 30th day of October, 1930, the defendant filed a motion in writing with the Clerk to remove, as a matter of right, the action to Durham County for trial, which motion was never heard and determined. Upon the institution of this action the plaintiff caused a writ of claim and delivery to be issued for the possession of the personal property described in the chattel mortgage given to secure the payment of the notes sued on in this action and the Sheriff of Durham County returned: 'Nothing to be found except a few worthless articles.' At the Second March Term 1935, the Court, upon its own motion, dismissed the action as of nonsuit, without actual notice to the plaintiff, and the plaintiff, upon being advised of said judgment on January 22, 1941, immediately served notice on the defendant and his attorney that he would move to set aside said judgment. The motion was heard at the April Term, 1941, and at the request of the attorney for the defendant for permission to file brief it was agreed by the parties in open Court that the Court could take the motion under advisement and render its decision at a later term. It further appears that this action was instituted by the plaintiff to recover of the defendant a balance due on notes given the plaintiff by the defendant, and that the plaintiff has a meritorious cause of action, and that the motion should be allowed. It Is, Therefore, Ordered, Adjudged and Decreed that the Judgment of nonsuit rendered in this action at the Second March Term, 1935, be and the same is hereby set aside and the Clerk is directed, upon notice to the parties, to hear and pass upon the Motion to Remove. Walter J. Bone, Judge."

To the ruling of the Court and to the signing of the foregoing judgment, the defendant, in apt time, and in open Court, excepted, assigned error and appealed to the Supreme Court.

J. G. Mills, of Raleigh, for plaintiff.

J. L. Morehead, of Durham, for defendant.

CLARKSON Justice.

The question involved: Did the Court err in entering the order that the judgment of nonsuit rendered in this action at the Second March Term, 1935, be set aside? We think so.

This action was instituted September 29, 1930. The provisional or ancillary remedy of claim and delivery was taken out for certain personal property by reason of a chattel mortgage held by plaintiff to secure the indebtedness of defendant. The complaint was filed the same day. The defendant lived in Durham County, N. C., and the summons was served on the defendant on September 30, 1930, and certain property taken under the Claim and Delivery proceedings. The return of the Sheriff, in part, is as follows: "Certain parts of telephone apparatus, consisting of telephones, switchboard, parts, such as nuts, bolts, parts of switchboard frames, etc., all of which is in very bad condition, and almost worthless. The switchboard and about two hundred telephones are in Victoria, Va. And after holding the said property for three days, no defendant's undertaking being filed with me, I delivered the said property to the plaintiff on his undertaking."

The prayer of the complaint, in part: "(a) That he be given judgment against the defendant for the sum of $2,744.76, with interest thereon at the rate of six per cent per annum from the 2nd day of August 1930, until paid. (b) For the possession of the property described in said chattel mortgage and that he be permitted to sell the said personal property in accordance with the terms and conditions of said chattel mortgage."

On the 29th day of October, 1930, the defendant, before answer, filed a motion to remove the action, N.C.Code 1939 (Michie) Sec. 470, to Durham County and notice to plaintiff and his attorney was filed but was unsigned by defendant's attorney, and no time was set for the hearing in the notice. The record discloses: "And thereafter, at a regular term of the Superior Court of Wake County, duly and regularly begun and held for the County of Wake, at a time and place required by law, to-wit: at the Courthouse in Raleigh, on the first Monday after the first Monday in March 1935, and before Honorable F. A. Daniels, Judge, duly commissioned, authorized and empowered to hold said Court, the following proceedings were had: The action was regularly calendared, to be tried or dismissed, for failure to prosecute, and thereupon the plaintiff having been called and failing to appear, the following Judgment was signed: 'Second March Term 1935-- Judgment--This cause coming on to be heard, and the plaintiff having been called and failing to appear, it is Ordered that the action be dismissed as of nonsuit, and that the plaintiff do pay the costs of this action to be taxed by the Clerk. F. A. Daniels, Judge Presiding'."

On May 27, 1941, plaintiff, through his attorney, gave notice to the defendant and his attorney of motion to reopen the case, setting forth that "plaintiff and his attorney first learned of the judgment dismissing the action on January 22, 1941."

The plaintiff filed an affidavit, setting forth, among other things: "The plaintiff, desirous of helping the defendant, did not insist upon pressing his suit against the defendant and waited until January 1941, and not having heard from the defendant he proceeded to take measures to prosecute said action, but much to his surprise he found that a judgment of nonsuit had been entered therein at the Second March Term 1935, without actual notice to him. That the defendant is indebted to him in the sum of $2,748.00, with six per cent interest from December 1, 1929, this indebtedness being evidenced by notes, which are now, and have been since their execution, in the possession of and owned by the plaintiff: That as soon as he learned that said judgment had been entered, he caused notice to be served on the defendant and his attorney of this motion to set aside said judgment."

In Clark v. Carolina Homes, 189 N.C. 703, 710, 128 S.E. 20, 24, it is decided by this Court: "Venue is not jurisdictional, and may be waived, and cannot be tested by demurrer, but by motion in the cause. [Citing authorities]. *** venue now is not jurisdictional and may be waived. [Citing authorities]. *** venue cannot be jurisdictional, and it may always be waived," citing authorities.

The Court had jurisdiction of the action. Defendant filed an unsigned notice of the hearing to remove and at no time pressed his motion to remove--he thereby waived same. Shaffer v. Bank, 201 N.C. 415, 418, 160 S.E. 481. Plaintiff did not press his action. Nothing was done in the action from October 30, 1930, when the motion was made, until March Term, 1935, and the record discloses that the judgment of nonsuit above set forth was rendered.

The Clerk could not pass upon the value of the...