11 S.E. 424 | N.C. | 1890
The summons in this case directed the defendants "to appear (392) before the judge of the Superior Court at the court to be held for the county of Buncombe at the courthouse in Asheville, on the third Monday after the ........ Monday of November." The summons was issued 2 July, 1883, and was served personally on the defendants on 15 October. The term of the court began 17 November, and was a four-weeks term. It was the only court then provided by law for that part of the year elapsing after the issuing of the summons in July. The complaint was verified and filed 13 December, 1883, during the last week of the term. At Fall Term, 1884, judgment by default for want of an answer was entered and a reference ordered to state an account. Before the referee, some of the parties attended on 19 March, 1887, and the case was continued; on 9 April, 1887, the defendants were present in person and by counsel, and case was continued, and by consent of both parties was set for 18 May, 1887. On that day, counsel for defendants, who was not the counsel who had before represented them in the cause, asked to be allowed to enter a special appearance and dismiss the proceeding for the reason "that the judgment in this case is irregular in that it is by default, the complaint not having been filed until 13 December, 1883, when the summons was returned on the third Monday in November, 1883." This motion was refused. The referee proceeded to state the account and made his report to June Term, 1887. At that term the defendants, upon notice given 23 May, 1887, moved to set aside the judgment rendered at November Term, 1884, upon the ground that it was "irregular, having been taken contrary to course and practice of the courts, and for the further cause it is a surprise to the defendants and oppressive to them." In support of this motion, they filed an affidavit in which they allege "that after the service of the summons upon them, and before the court to which the same could have been returnable, that is if the summonses could be construed to (393) have been returnable to the third Monday in November next, affiant employed M. E. Carter, Esq., to attend to the suit for them; that their said counsel assured them that the plaintiffs could not *317 interfere with their settlement, which is referred to in affidavit of John Allman, and that he would attend to the same for them; that they were satisfied their defense would be properly made, and, resting under said assurance, gave the matter no further attention; that it was currently reported after that that the plaintiffs had abandoned their action, and they heard no more of the same until they were notified of the taking of the account by Thomas A. Jones, Esq., when, to their surprise, they were informed that a judgment had been rendered against them." The court declined to set aside the judgment, and defendants appealed. We discover nothing to constitute this an irregular judgment. The defendants might have moved at November Term, 1883, to dismiss the action for failure to file the complaint within the first three days of the term. The Code, 206. This was not done. Even if the complaint had been filed after the close of that term, it would have been on file during the first three days of next term, and the judgment by default might have been then rendered if no answer were filed at that term. In fact, it was not taken until November Term, 1884.
Nor was the summons irregular. It was evidently intended for Fall Term, 1883, and defendants could not have been misled by it. In truth, their affidavit says they employed counsel to represent them at that term. Besides, "a general appearance to an action cures all antecedent irregularity in the process (as here by attending before the referee), and places defendant upon the same ground as if he had been personally served with process." Wheeler v. Cobb,
While an irregular judgment will be set aside upon motion within any reasonable time, this will only be done when the irregularity complained of is so serious in its nature as to render the judgment void, or seriously injure and prejudice the moving party (Williamson v. Hartman,
Nor should the judgment have been set aside for excusable neglect. The summons having been personally served, a motion upon that ground could only be made within one year after the rendition of the judgment. The Code, sec. 274; McLean v. McLean,
Per Curiam. No error.
Cited: Williams v. R. R.,
(395)
