87 S.E. 109 | N.C. | 1915
Civil action tried before a justice of the peace and carried to the Superior Court of Avery County, by appeal of the feme defendant from the denial of a motion by her to set aside the judgment of the justice, and heard in the latter court.
The question in dispute was whether the summons had been served on the defendant, Mamie Rash. Affidavits were filed by the respective parties. The justice found as a fact that the summons had been duly served, and refused to set aside the judgment, and defendant appealed. In the Superior Court the motion was heard upon the affidavits, and the judge also found as a fact that the summons had been duly served. The officer to whom the process had been directed returned thereon that it had been received by him on 23 June, 1914, and served on both defendants, naming them, at 7 o'clock p. m. on the same day. The judge held that the defendants' remedy was by a civil action, and not by a motion, upon the ground, we assume, that the defense (342) to the action which is set up by the feme defendant indicated that she intended to show, by parol evidence, that she signed the mortgage on the land of her husband for the purpose of releasing any marital interest she had in the same and not for the purpose of becoming bound for debt, and, as this varied and contradicted the written contract, it could not be done (Royal v. Southerland,
"If the judgment is rendered in the absence of the defendant, and the process is defective, or there is the appearance of service when in fact there was none, the defendant may move before the justice to set the judgment aside." Thompson v. Notion Co.,
Where the ground of the motion to vacate the judgment is irregularity or excusable neglect, it must be shown, at least prima facie, that the party has a valid defense, as the above cited authorities will show. See, also, Becton v. Dunn,
So it follows that we would affirm the judgment should we consider the case upon the legal merits involved in the motion, but we must dismiss the appeal for noncompliance with the recent rule of this Court requiring the clerk to notify all those who appeal in forma pauperis, when docketing appeals, to file six typewritten copies of the record, including case on appeal and briefs, for the use of the clerk and the judges of this Court. We have found it necessary to adopt this rule in order *405 that we may intelligently transact the business of the Court, by a fair understanding of the case as the argument of counsel proceeds. All briefs of appellants should be prefaced by a clear and concise statement, showing the nature of the case and the facts bearing upon the assignments of error. The rule of this Court positively requires this to be done, and we again direct attention to it, as it has not been observed in many cases, and it must be complied with. A brief not containing such a statement does not conform to the rule, and hereafter the latter will be strictly enforced, as a compliance with it is so essential in the hearing of causes, and is quite indispensable. This applies to all appeals. Recently we have adopted a rule in regard to filing copies of records and briefs in pauper appeals of which parties and their counsel will take notice, without any special warning from the clerk. There must be, under this rule, six copies each of the record and the appellant's brief. The clerk has informed us that appellant in this case had received notice of the rule, and, not having complied with it, we dismiss the appeal.
Appeal dismissed.
Cited: Bank v. Brock,
