State ex rel. Bowman v. Malloy

264 N.C. 396 | N.C. | 1965

Per CuRiam.

Actions, as authorized by c. 19 of the General Statutes, for the abatement of nuisances are not in rem but in personam. Sinclair, Solicitor v. Croom, 217 N.C. 526, 8 S.E. 2d 834.

A party charged with the maintenance of a public nuisance, as defined by G.S. 19-1, has a right to traverse the factual allegations of the complaint. If he does so, he can not be deprived of his right to a jury trial on the issues raised by the pleadings, N. C. Constitution, Art. I, § 19; Art. IV, § 12 (formerly § 13); Sparks v. Sparks, 232 N.C. 492, 61 S. E. 2d 356; Sinclair, Solicitor v. Croom, supra. The property owner is entitled to notice of the action, and a reasonable opportunity to be heard. N. C. Constitution, Art. I, § 17. “[A] judgment of a court cannot bind a person unless he is brought before the court in some way sanctioned by law and afforded an opportunity to be heard in defense of his right.” Eason v. Spence, 232 N.C. 579 (586), 61 S.E. 2d 717. Here, there is no claim that Malloy had in any way sanctioned by law been afforded an opportunity to assert his defense.

The court erred in refusing to vacate the judgment rendered on December 16, 1964, so far as that judgment relates to defendant Malloy. When Malloy filed his motion to vacate the judgment of December 16, he entered a general appearance. The court now has jurisdiction in per-sonam. Malloy is entitled to a reasonable period in which to plead. The Superior Court will fix a reasonable time, not less than 30 days, in which defendant Malloy may plead.

No motion has been made with respect to the restraining order issued December 14, 1964. That order will continue in force until there 'has been a determination of the issues which may be raised by the pleadings, unless the court, on motion of defendant Malloy prior thereto, shall modify or vacate the same.

The cause is remanded for further proceedings not inconsistent with this opinion.

Error and remanded.