17 S.E.2d 514 | N.C. | 1941
The following judgment was rendered in the court below: "This cause coming on to be heard and being heard before Honorable Walter J. Bone, Judge, upon motion of J. G. Mills, attorney for plaintiff, to set aside the judgment of nonsuit rendered herein at the Second March Term, 1935, the defendant being represented by J. L. Morehead, attorney, and it appears upon examination of the record and the affidavit filed herein, and after hearing and argument of the attorneys for the plaintiff and the defendant, that this action was instituted by issuing summons and filing complaint on the 29th day of September, 1930, and the summons, with a copy of the complaint, were served on the defendant on the 30th day of September, 1930, and that on the 30th day of October, 1930, the defendant filed a motion in writing with the Clerk to remove, as a matter of right, the action to Durham County for trial, which motion was never heard and determined. Upon the institution of this action the plaintiff caused a writ of claim and delivery to be issued for the possession of the personal property described in the chattel mortgage given to secure the payment of the notes sued on in this action and the Sheriff of Durham County returned: `Nothing to be found except a few worthless articles.' At the Second March Term, 1935, the Court, upon its own motion, dismissed the action as of nonsuit, without actual notice to the plaintiff, and the plaintiff, upon being advised of said judgment on January 22, 1941, immediately served notice on the defendant and his attorney that he would move to set aside said judgment. The motion was heard at the April Term, 1941, and at the request of the attorney for the defendant for permission to file brief it was agreed by the parties in open Court that the Court could take the motion under advisement and render its decision at a later term. It further appears that this action was instituted by the plaintiff to recover of the defendant *357 a balance due on notes given the plaintiff by the defendant, and that the plaintiff has a meritorious cause of action, and that the motion should be allowed. It Is, Therefore, Ordered, Adjudged and Decreed that the Judgment of nonsuit rendered in this action at the Second March Term, 1935, be and the same is hereby set aside and the Clerk is directed, upon notice to the parties, to hear and pass upon the Motion to Remove. Walter J. Bone, Judge."
To the ruling of the court and to the signing of the foregoing judgment the defendant, in apt time, and in open court, excepted, assigned error, and appealed to the Supreme Court. The question involved: Did the court err in entering the order that the judgment of nonsuit rendered in this action at the Second March Term, 1935, be set aside? We think so.
This action was instituted 29 September, 1930. The provisional or ancillary remedy of claim and delivery was taken out for certain personal property by reason of a chattel mortgage held by plaintiff to secure the indebtedness of defendant. The complaint was filed the same day. The defendant lived in Durham County, N.C. and the summons was served on the defendant on 30 September, 1930, and certain property taken under the claim and delivery proceedings. The return of the sheriff, in part, is as follows: "Certain parts of telephone apparatus, consisting of telephones, switchboard, parts, such as nuts, bolts, parts of switchboard, frames, etc., all of which is in very bad condition, and almost worthless. The switchboard and about two hundred telephones are in Victoria, Va. And after holding the said property for three days, no defendant's undertaking being filed with me, I delivered the said property to the plaintiff on his undertaking."
The prayer of the complaint, in part: "(a) That he be given judgment against the defendant for the sum of $2,744.76, with interest thereon at the rate of six per cent per annum from the 2nd day of August, 1930, until paid. (b) For the possession of the property described in said chattel mortgage and that he be permitted to sell the said personal property in accordance with the terms and conditions of said chattel mortgage."
On 29 October, 1930, the defendant, before answer, filed a motion to remove the action (N.C. Code, 1939 [Michie], sec. 470) to Durham County and notice to plaintiff and his attorney was filed but was unsigned by defendant's attorney, and no time was set for the hearing in the notice. The record discloses: "And thereafter, at a regular term of the Superior Court of Wake County, duly and regularly begun and held *358 for the County of Wake, at a time and place required by law, to wit: at the Courthouse in Raleigh, on the first Monday after the first Monday in March, 1935, and before Honorable F. A. Daniels, Judge, duly commissioned, authorized and empowered to hold said Court, the following proceedings were had: The action was regularly calendared, to be tried or dismissed, for failure to prosecute, and thereupon the plaintiff having been called and failing to appear, the following Judgment was signed: `Second March Term, 1935 — Judgment — This cause coming on to be heard, and the plaintiff having been called and failing to appear, it is Ordered that the action be dismissed as of nonsuit, and that the plaintiff do pay the costs of this action to be taxed by the clerk. F. A. Daniels, Judge Presiding.'"
On 27 May, 1941, plaintiff, through his attorney, gave notice to the defendant and his attorney of motion to reopen the case, setting forth that "plaintiff and his attorney first learned of the judgment dismissing the action on January 22, 1941."
The plaintiff filed an affidavit, setting forth, among other things: "The plaintiff, desirous of helping the defendant, did not insist upon pressing his suit against the defendant and waited until January, 1941, and not having heard from the defendant he proceeded to take measures to prosecute said action, but much to his surprise he found that a judgment of nonsuit had been entered therein at the Second March Term, 1935, without actual notice to him. That the defendant is indebted to him in the sum of $2,748.00, with six per cent interest from December 1, 1929, this indebtedness being evidenced by notes, which are now, and have been since their execution, in the possession of and owned by the plaintiff: That as soon as he learned that said judgment had been entered, he caused notice to be served on the defendant and his attorney of this motion to set aside said judgment."
In Clark v. Homes,
The court had jurisdiction of the action. Defendant filed an unsigned notice of the hearing to remove and at no time pressed his motion to remove — he thereby waived same. Shaffer v. Bank,
The clerk could not pass upon the value of the property seized in claim and delivery proceedings and turned over to plaintiff. This was a fact to be determined by a jury. *359
N.C. Code, supra, sec. 637, reads: "Whenever a civil action or special proceeding begun before the clerk of a Superior Court is for any ground whatever sent to the Superior Court before the judge, the judge has jurisdiction; and it is his duty, upon the request of either party, to proceed to hear and determine all matters in controversy in such action, unless it appears to him that justice would be more cheaply and speedily administered by sending the action back to be proceeded in before the clerk, in which case he may do so." Hall v. Artis,
In Hill v. Hotel Co.,
A judgment may be valid, irregular, erroneous, or void. In Finger v.Smith,
In the present action the judgment is not void. There was service of process and jurisdiction. If the judgment was erroneous it was necessary for plaintiff to appeal. This was not done. If the judgment was irregular a motion in the cause, made within a reasonable time, is the proper remedy. It was the duty of the plaintiff to prosecute the action, it was his duty to see that there was no unreasonable delay; it was his duty to give to his suit in court that amount of attention which a man of ordinary prudence gives to his important business. "The least that can be expected of a person having a suit in court is that he shall give it that amount of attention which a man of ordinary prudence usually gives to his important business." Rodman, J., in Sluder v. Rollins,
The plaintiff in this case, for over ten years, allowed his suit to remain in the court without action, and for over five years after nonsuit. He now makes this motion. We can find no statute that authorizes the setting aside of a judgment after such a length of time. We think the principle of laches is applicable. "Estoppel by laches" is failure to do something which should be done or to enforce right at proper time.Hutchinson v. Kenney,
"Laches" is negligence consisting in omission of something which a party might do and might reasonably be expected to do towards vindication or enforcement of his rights, being generally a synonym of "remissness," "dilatoriness," "unreasonable or unexcused delay," the opposite of "vigilance," and means a want of activity and diligence in making a claim or moving for the enforcement of a right, particularly in equity, which will afford ground for presuming against it or for refusing relief where that is discretionary with the court, but laches presupposes, not only lapse of time, but also the existence of circumstances which render negligence imputable. Alexander v. Cedar Works,
The plaintiff's leniency with defendant was commendable, but he started a lawsuit and should not have waited for over ten years to see what had happened to it. Neither a court of law or equity can relieve him of the result of such unreasonable delay.
For the reasons given, the judgment of the court below is
Reversed.