Harris v. . Board of Education

Supreme Court of North Carolina

Harris v. . Board of Education

7 S.E.2d 538, 217 N.C. 281, 1940 N.C. LEXIS 222

CourtSupreme Court of North Carolina

DecidedMarch 20, 1940

StatusPublished

Cited by11 cases

This text of 7 S.E.2d 538 (Harris v. . Board of Education) 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

Harris v. . Board of Education, 7 S.E.2d 538, 217 N.C. 281, 1940 N.C. LEXIS 222 (N.C. 1940).

Pincite

Opinion

*283 SchencK, J.

It is tbe contention of tbe defendants tbat tbe provision of C. S., 515, tbat “witbin ten days after tbe receipt of tbe certificate from tbe Supreme Court, if there is an appeal, if the demurrer is sustained tbe plaintiff may move, upon three days notice, for leave to amend tbe complaint,” made it necessary for tbe plaintiffs to give three days written notice (C. S., 914) of their intention to lodge'tbeir motion to file additional or amended complaint.

With tbe contention of tbe defendants we cannot concur. Tbe permissive right given tbe plaintiffs by tbe statute does not deprive them of tbe right to lodge any motion at term time in a cause pending before tbe court.

Parties to actions are fixed with notice of all motions or orders made during tbe term of court in causes pending therein. Jones v. Jones, 173 N. C., 279; Wooten v. Drug Co., 169 N. C., 64; Hardware Co. v. Banking Co., 169 N. C., 744; Coor v. Smith, 107 N. C., 430; Hemphill v. Moore, 104 N. C., 378.

Tbe bolding tbat tbe provision of tbe statute (C. S., 515) tbat upon tbe demurrer being sustained tbe plaintiffs may move upon three days notice to amend does not deprive them of their right to lodge their motion to amend at term without such notice is sustained by tbe cases above cited. In tbe Jones case, supra, notwithstanding tbe statute provided “tbat no order allowing alimony pendente lite shall be made unless tbe husband bad five days notice thereof,” it was held tbat tbe provision applied only when tbe motion is beard out of term, and tbat tbe parties are fixed with notice of all motions and orders made during tbe term of court in causes pending therein. In the Hemphill case, supra, notwithstanding tbe statute, Code, 340 (now C. S., 849), prescribed tbat “an injunction should not be allowed after tbe defendant shall have answered, unless upon notice or upon order to show cause,” it was held tbat where a motion for injunction was made, after answer bad been filed, in the course of an action in term time, it was proper to entertain tbe motion.

Tbe order of tbe Superior Court is

Affirmed.

Free access — add to your briefcase to read the full text and ask questions with AI

*283 SchencK, J.

It is tbe contention of tbe defendants tbat tbe provision of C. S., 515, tbat “witbin ten days after tbe receipt of tbe certificate from tbe Supreme Court, if there is an appeal, if the demurrer is sustained tbe plaintiff may move, upon three days notice, for leave to amend tbe complaint,” made it necessary for tbe plaintiffs to give three days written notice (C. S., 914) of their intention to lodge'tbeir motion to file additional or amended complaint.

With tbe contention of tbe defendants we cannot concur. Tbe permissive right given tbe plaintiffs by tbe statute does not deprive them of tbe right to lodge any motion at term time in a cause pending before tbe court.

Parties to actions are fixed with notice of all motions or orders made during tbe term of court in causes pending therein. Jones v. Jones, 173 N. C., 279; Wooten v. Drug Co., 169 N. C., 64; Hardware Co. v. Banking Co., 169 N. C., 744; Coor v. Smith, 107 N. C., 430; Hemphill v. Moore, 104 N. C., 378.

Tbe bolding tbat tbe provision of tbe statute (C. S., 515) tbat upon tbe demurrer being sustained tbe plaintiffs may move upon three days notice to amend does not deprive them of their right to lodge their motion to amend at term without such notice is sustained by tbe cases above cited. In tbe Jones case, supra, notwithstanding tbe statute provided “tbat no order allowing alimony pendente lite shall be made unless tbe husband bad five days notice thereof,” it was held tbat tbe provision applied only when tbe motion is beard out of term, and tbat tbe parties are fixed with notice of all motions and orders made during tbe term of court in causes pending therein. In the Hemphill case, supra, notwithstanding tbe statute, Code, 340 (now C. S., 849), prescribed tbat “an injunction should not be allowed after tbe defendant shall have answered, unless upon notice or upon order to show cause,” it was held tbat where a motion for injunction was made, after answer bad been filed, in the course of an action in term time, it was proper to entertain tbe motion.

Tbe order of tbe Superior Court is

Affirmed.

Cite This Page — Counsel Stack

Bluebook (online)

7 S.E.2d 538, 217 N.C. 281, 1940 N.C. LEXIS 222, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harris-v-board-of-education-nc-1940.

Opinion

Related

Cite This Page — Counsel Stack