McDaniel v. Fordham

264 N.C. 62 | N.C. | 1965

Higgins, J.

In this case the demurrer was sustained in the Superior Court but was overruled in this Court. See 261 N.C. 423, 135 S.E. 2d 22. Thereafter, the proceeding is governed by that part of G.S. 1-131 which requires an answer within 30 days after the receipt of the certificate from the Supreme Court. Otherwise the plaintiff shall be entitled to judgment by default final or default and inquiry, according to the course and practice of the court. Based upon the foregoing, Judge Peel concluded that he was without power to allow an answer or other act to be done after the expiration of thirty days from the date the mandate was received from the Supreme Court.

Within ten days after this Court’s decision was certified down, the defendants filed their second motion to strike. Both were pending and undisposed of when Judge Peel entered the judgment by default and inquiry as a matter of law.

The defendants, in their assignments of error, rely upon the proposition that the court, if not as a matter of right then as a matter of discretion, had authority to allow the answer as provided in G.S. 1-152. “The judge may likewise, in his discretion, and upon such terms as may be just, allow an answer or reply to be made, or other act to be done, after the time limited, or by an order may enlarge the time.” Interpreting the above section, this Court, in Tucker v. Transou, 242 N.C. 498, 88 S.E. 2d 131, said: “But when a motion to strike is not made in apt time, the court has discretionary power to allow or deny such motion, and its ruling will not be disturbed on appeal in the absence of an abuse of discretion.” Bolin v. Bolin, 242 N.C. 642, 89 S.E. 2d 303; Parrish v. Railroad, 221 N.C. 292, 20 S.E. 2d 299. Before the time to plead has expired, a motion may be made as a matter of right. When made thereafter, it is a matter of discretion. Hill v. Stansbury, 221 N.C. 339, 20 S.E. 2d 308; Brown v. Hall, 226 N.C. 732, 40 S.E. 2d 412.

Conceding the first motion to strike was not filed in apt time, having been filed after the demurrer, how about the second motion which was filed after the demurrer had been removed from the case by the order of this Court? It was certainly filed during the time allowed for answer and before answer. “The statute G.S. 1-153, under which the defendant’s motion to strike was made, provides: . . . The defendant lodged his motion before answer, demurrer, or extension of time to plead. This being so, he may claim the benefits of the statute as a matter of right, rather than of grace.” Daniel v. Gardner, 240 N.C. 249, 81 S.E. 2d 660. If the motion was timely filed, or if allowed to be filed as a matter of discretion, the defendants were not required to answer until the motion was passed'on by the judge. Heffner v. Jefferson Standard Life Ins. Co., 214 N.C. 359, 199 S.E. 293.

We pose but do not find it necessary to answer the question whether the defendants filed their second motion to strike in apt time and as a matter of right.

The record discloses with certainty that Judge Peel acted under what he conceived to be the compulsion of law in overruling the clerk and entering the judgment by default and inquiry. If it be determined that the second motion to strike was timely filed, the answer was not due until the motion was allowed or denied, assuming it was not void on its face. In such event the court was without power to enter judgment by default and inquiry. On the other hand, if it be determined the motion was not timely filed, nevertheless the court has discretionary power to allow it and, likewise, to allow the filing of the answer. In any event the court committed error in entering the default and inquiry judgment as a matter of law. For that reason, the judgment of the Superior Court is

Reversed.