218 S.E.2d 518 | N.C. Ct. App. | 1975
Judy Shumate JENKINS
v.
Clarence Richard JENKINS.
Court of Appeals of North Carolina.
*519 Eggers & Eggers by Stacy C. Eggers, III, Boone, for plaintiff-appellee.
Wilson, Palmer & Simmons by W. C. Palmer, Lenoir, for defendant-appellant.
ARNOLD, Judge.
Defendant contends that he was not given adequate notice to which he was entitled under G.S. 1A-1, Rule 6(a) and (d). Plaintiff responds that defendant was given six days' notice where the statute merely required five days' notice. G.S. 1A-1, Rule 6(d).
Where the time period is less than seven days, intermediate Saturdays and Sundays shall be excluded. G.S. 1A-1, Rule 6(a). Plaintiff committed error in computing the time. However, defendant does not have an absolute right to the notice requirement of Rule 6. Notice may be waived. Also, a new trial will not be granted for a mere technical error. It is incumbent on defendant to show he was prejudiced. See Brandon v. Brandon, 10 N.C.App. 457, 179 S.E.2d 177 (1971). Defendant has not argued any prejudicial harm and we can find none.
Defendant further argues that the court erred in denying his motion for a continuance. It is a well established rule in North Carolina that the granting of a continuance is within the discretion of the trial court, and its exercise will not be reviewed in the absence of manifest abuse of discretion. Johnson v. Johnson, 14 N.C.App. 40, 187 S.E.2d 420 (1972); Austin v. Austin, 12 N.C.App. 286, 183 S.E.2d 420 (1971).
Defendant asserts that because his attorney was engaged in a trial in Superior Court that his motion for continuance should have been allowed, citing Rules of Practice for Superior and District Courts, Rule # 3 (North Carolina General Statutes, Volume 4A, Appendix I) as his authority. "Attorneys, under the guise of having business requiring their presence elsewhere, ought not to be allowed to delay, defeat or prevent a litigant from having his case tried or being heard on a motion at some reasonably suitable and convenient time." Austin v. Austin, supra, at 297, 183 S.E.2d at 428. The court did not abuse its discretion in denying defendant's motion for continuance.
Defendant's final argument is that a wife cannot maintain an action against her husband for alimony and custody while living in the same house with him. We disagree. If defendant's contention were correct it would mean that living under the same roof, without any evidence of sexual relations, would be condonation as a matter of law.
*520 Plaintiff alleged that she and her minor children had no other place to go. We cannot agree with defendant that plaintiff condoned the continuing indignities complained of merely because she remained in the same house with defendant for a short period of time. For a discussion of condonation see Lee, North Carolina Family Law, Vol. 1, § 87.
After reviewing defendant's arguments we find no prejudicial error.
Affirmed.
MORRIS and HEDRICK, JJ., concur.
