14 S.E. 106 | N.C. | 1891
On 12 February, 1891, the return day of the summons, the defendants Warlick appeared by Mr. Ben Posey, their attorney, and filed answer to the plaintiff's petition claiming to be sole seized and possessed of the land and premises described in the petition, but failed to file the undertaking required by the statute, or to otherwise comply with the provisions of the statute so as to entitle them to answer. On 30 March, 1891, counsel for plaintiff appeared before the clerk and moved the court for an order striking out the answer of the defendants Warlick, and for judgment for plaintiff as prayed for in his petition, which motions were granted by the court without giving notice to defendants or their attorney.
The clerk granted the plaintiff's motion, struck out the defendants' answer, and gave judgment for the plaintiff, from which the defendants appealed. His Honor reversed the order of the clerk, and directed the clerk to give notice to the defendants of a day by which the defense bond must be filed or leave obtained, in manner required by law, to defend without bond. From which judgment the plaintiff appealed.
The defendants having pleaded sole seizin could (673) have been required to a file a defense bond under section 237 of The Code; Vaughan v. Vincent,
Affirmed.
Cited: Honeycutt v. Brooks,
(674)