Dunn v. . Jones

142 S.E. 320, 195 N.C. 354, 1928 N.C. LEXIS 88

• Court: Supreme Court of North Carolina
• Decided: March 28, 1928
• Status: Published

Opinion

BeogdeN, J.

One phase of this controversy was disposed of by this Court in Dunn v. Jones, 192 N. C., 251. This case has been referred to as the rich young ruler case. The Court held that plaintiff’s title was defective in the particulars pointed out in the opinion. Thereafter on 22 June, 1927, plaintiff instituted the present action in ejectment for the possession of the land. The plaintiff excepts to the judgment rendered by the court upon the ground that the trial judge had no power to set aside the judgment by default final rendered by the clerk. This contention cannot be sustained. When the judgment by default was entered by the clerk the defendant excepted and appealed to the judge. Hence the whole case was regularly before the court upon the appeal. Both parties were thereupon fixed with notice of everything that was regularly done in the cause. Foster v. Allison Corporation, 191 N. C., 166. Under the law, the trial judge had the power in the exercise of his sound legal discretion to set aside the judgment under C. S., 600, and to permit the defendant to file an answer under C. S., 536. A judgment may be set aside under C. S., 600, if the moving party can show excusable neglect, and that he has a meritorious defense. In the case at bar the trial judge found all the necessary and essential facts to support his order vacating the judgment by default. Norton v. McLaurin, 125 N. C., 185; Crumpler v. Hines, 174 N. C., 283; Jernigan v. Jernigan, 179 N. C., 237; Battle v. Mercer, 187 N. C., 437; Helderman v. Mills Co., 192 N. C., 626. In Aldridge v. Ins. Co., 194 N. C., 683, the Court referring to Public Laws 1921, Ex. Ses., ch. 92; Public Laws 1923, ch. 53; Public Laws 1924, Ex. Ses., eh. 18, said: “These statutes have reference to the clerk and were not intended to impair the broad powers conferred on the judge, who ‘may in his discretion and upon such terms as may be just allow an answer or reply to be made, or other act done, after the time limited or by an order to enlarge the time. ” Roberts v. Merritt, 189 N. C., 194; McNair v. Yarboro, 186 N. C., 111.

Moreover by chapter 66, Public Laws 1927, the time for filing answer was enlarged to thirty days. This act went into effect 1 July, 1927. Hence the answer was filed in proper time. “No person can claim a vested right in any particular mode of procedure for the enforcement or defense of his rights. Where a new statute deals with procedure only, prima facie it applies to all actions — those which have accrued or are pending, and future actions.” Stacy, C. J., in Martin v. Vanlaningham, 189 N. C., 656. The judgment rendered is amply supported by numerous authorities in this State.

Plaintiff in his brief says: “I take much pleasure in informing this Court that I have read every one of your reports from Yol. 140 to 193, inclusive, and with the hundreds of opinions, I have found nothing that in law would support the judgment sent up in this record.” In view of the fact that the uniform holding of the Court supports the judgment rendered, the plaintiff’s aforesaid declaration in the brief, calls to mind the colloquy between Philip and a notable citizen of Ethiopia, occurring long ago. The distinguished citizen of Ethiopia was undertaking to read the Book of the Law, and the great evangelist propounded to him this query: “Understandest thou.what thou readest?” Acts 8:30.

Affirmed.