Bank of Pinehurst v. Derby

Supreme Court of North Carolina

Bank of Pinehurst v. Derby

2 S.E.2d 875, 215 N.C. 669, 1939 N.C. LEXIS 338

CourtSupreme Court of North Carolina

DecidedMay 24, 1939

StatusPublished

Cited by10 cases

This text of 2 S.E.2d 875 (Bank of Pinehurst v. Derby) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Bank of Pinehurst v. Derby, 2 S.E.2d 875, 215 N.C. 669, 1939 N.C. LEXIS 338 (N.C. 1939).

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Opinion

*670 Stacy, C. J.

By bearing tbe two motions together the defendant was apparently disadvantaged, for he could not resist the plaintiff’s motion in its entirety or that part asking for judgment by default, without waving his special appearance. Scott v. Life Assn., 137 N. C., 515, 50 S. E., 221. Nor could he ask for time to plead to the merits without making a general appearance. Abbitt v. Gregory, 195 N. C., 203, 141 S. E., 587; Currie v. Mining Co., 157 N. C., 209, 72 S. E., 980. He gave notice of appeal from the denial of his motion, which was his right. Denton v. Vassiliades, 212 N. C., 513, 193 S. E., 737. Cf., Johnson v. Ins. Co., ante, 120. He still has thirty days “after the final determination of a motion to dismiss upon a special appearance,” C. S., 509, within which to file demurrer or answer to the complaint.

The special appearance of the defendant, if it is to be preserved, precludes separate consideration on appeal of the dual rulings made by the clerk. The judgment of the Superior Court is in solido.

The judgment will be vacated and the cause remanded for further proceedings as to justice appertains and the rights of the parties may require.

Error and remanded.'

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*670 Stacy, C. J.

By bearing tbe two motions together the defendant was apparently disadvantaged, for he could not resist the plaintiff’s motion in its entirety or that part asking for judgment by default, without waving his special appearance. Scott v. Life Assn., 137 N. C., 515, 50 S. E., 221. Nor could he ask for time to plead to the merits without making a general appearance. Abbitt v. Gregory, 195 N. C., 203, 141 S. E., 587; Currie v. Mining Co., 157 N. C., 209, 72 S. E., 980. He gave notice of appeal from the denial of his motion, which was his right. Denton v. Vassiliades, 212 N. C., 513, 193 S. E., 737. Cf., Johnson v. Ins. Co., ante, 120. He still has thirty days “after the final determination of a motion to dismiss upon a special appearance,” C. S., 509, within which to file demurrer or answer to the complaint.

The special appearance of the defendant, if it is to be preserved, precludes separate consideration on appeal of the dual rulings made by the clerk. The judgment of the Superior Court is in solido.

The judgment will be vacated and the cause remanded for further proceedings as to justice appertains and the rights of the parties may require.

Error and remanded.'

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Bluebook (online)

2 S.E.2d 875, 215 N.C. 669, 1939 N.C. LEXIS 338, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bank-of-pinehurst-v-derby-nc-1939.

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