62 N.C. App. 750 | N.C. Ct. App. | 1983
The scope of this appeal is very narrow, indeed. It is not concerned with the propriety of any of the alimony or contempt orders, or of the order of income assignment, or even of the income assignment itself, none of which has been excepted to or appealed from. Nor is it concerned with the merits of the plaintiffs motion in the cause, which has not been considered and ruled on by the trial judge. The only question presented for decision is whether the judge erred in refusing to consider plaintiffs motion in the cause and dismissing it because of plaintiffs continuing and prolonged defiance of the court’s orders. In our view, no error has been shown.
The part of Rule 41(b) pertinent hereto reads as follows:
For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim therein against him. [Emphasis supplied.]
Though motions are not mentioned therein, it necessarily follows that a rule which expressly authorizes the judge to dismiss a
In passing, we note, however, that the power to sanction disobedient parties, even to the point of dismissing their actions or striking their defenses, did not originate with Rule 41(b). It is longstanding and inherent. 27 C.J.S. Dismissal & Nonsuit § 59. For courts to function properly, it could not be otherwise.
The order appealed from is
Affirmed.
