Ford v. Pigeon River Lumber Co.

71 S.E. 439, 155 N.C. 352, 1911 N.C. LEXIS 401

• Court: Supreme Court of North Carolina
• Decided: May 31, 1911
• Status: Published

Opinion

BeowN, J.

Tbe summons was returnable to September Term, 1910, at wbicb term an order was made in tbis cause as follows: “Plaintiff allowed forty days to file complaint; defendant bas forty days to file answer.” Tbe defendant did not except to tbis order and did not move to dismiss tbe action for failure to file complaint, as it bad a right to do.

It may be, as contended by defendant, that a petition for removal need not be presented until tbe complaint is filed, and tbe record then discloses a removable controversy as to tbe sum demanded, but under our decisions tbe defendant bas waived bis right to remove and submitted itself to tbe jurisdiction of tbe court by not excepting to tbe order we have quoted.

By failing to except to it, tbe defendant is taken to have consented to it. Lewis v. Steamboat Co., 131 N. C., 653; Bryson v. R. R., 141 N. C., 594; Garrett v. Bean, 144 N. C., 26.

Where an order of reference is made in a cause, and it is not excepted to and tbe exception noted on tbe record, it is taken to be a reference by consent, upon tbe principle that “silence speaks consent,” and a jury trial is thereby waived. Driller Co. v. Worth, 117 N. C., 515.

Upon same principle, wben tbe defendant tabes no- exception to tbe order extending tbe time witbin wbicb to file complaint and answer, tbe order is a consent order and voluntary submission by defendant to tbe jurisdiction of tbe court and a waiver of a right to remove.

Affirmed.