Howard v. . Hinson

131 S.E. 748, 191 N.C. 366, 1926 N.C. LEXIS 75

• Court: Supreme Court of North Carolina
• Decided: March 10, 1926
• Status: Published

Opinion

Adams, J.

Tbe plaintiffs brought this action to recover damages for injury to an automobile alleged to bave been caused by tbe defendant’s negligence. Tbe summons, returnable 10 June, 1925, was issued 28 May, and served 3 June. Tbe complaint duly verified was filed 29 May. On 26 June tbe defendant moved upon affidavit tbat tbe cause be removed from Graven to Wayne on tbe ground tbat tbe convenience of witnesses and tbe ends of justice would be promoted by tbe change. C. S., 470(2). On 6 July, tbe plaintiffs prepared a judgment by default and inquiry and tendered it to tbe clerk for bis signature. He denied tbe motion for judgment and tbe plaintiffs excepted and appealed to tbe Superior Court. Tbe appeal was beard at tbe October Term in Craven. Meantime, on 24 July, 1925, tbe defendant filed bis verified answer. On tbe bearing of tbe appeal Judge Bond approved the-action of tbe clerk, made an order permitting tbe defendant to file bis answer, and dismissed tbe appeal. Tbe plaintiffs excepted and appealed to tbe Supreme Court.

Since tbe defendant was granted leave to file an answer we may treat tbe dismissal of tbe appeal as equivalent to an order remanding tbe cause to tbe clerk and determine tbe question on its merits.

Tbe defendant in a civil action must appear and demur or answer within twenty days after tbe return day of tbe summons or after service of tbe complaint upon each of tbe defendants, or within twenty days after tbe final determination of a motion to remove as a matter of right. 3 C. S., 509. Tbe removal of a cause from one county to another for tbe convenience of witnesses is not a matter of right because it involves tbe exercise of discretion. Oettinger v. Livestock Co., 170 N. C., 152. All motions to remove as a matter of right and all motions to remove to tbe Federal Court shall be made before tbe clerk, and from bis order an appeal may be taken (3 C. S., 913(a); Laws 1925, cb. 282); but a motion to remove for tbe convenience _of witnesses may be made before tbe judge at any time during tbe term. Riley v. Pelletier, 134 N. C., 316. See, also, Lumber Co. v. Arnold, 179 N. C., 269, 275; Zucker v. Oettinger, 179 N. C., 277. Tbe clerk refused to sign tbe judgment tendered by tbe plaintiffs on tbe ground tbat tbe motion for removal was pending; but as tbe removal was discretionary tbe statute did not enlarge tbe time for filing tbe answer until determination of the motion. In tbe record there is no order of tbe clerk extending tbe time, but one of tbe appellants’ assignments of error is tbe statement tbat tbe clerk erred in permitting tbe defendant to file bis answer on 24 July, as tbe statutory time bad expired; and in tbe appellee’s brief it is said tbe clerk made an order to tbis effect. We assume, tben, tbat on 24 July tbe clerk permitted tbe defendant to file bis answer; but tbe time fixed by tbe statute bad tben expired.

Tbe appellants contend tbat tbe clerk bad no authority to direct tbat tbe answer be filed after tbe expiration of tbe time prescribed by tbe statute. If tbis be granted, tbe question is whether tbe judge bad such authority when tbe case was before him on appeal; and tbis question, we think, has practically been resolved against tbe position of tbe appellants. In McNair v. Yarboro, 186 N. C., 111, it is said tbat section 509 (3 C. S.; Laws 1921, ch. 92), applies to tbe clerk and does not impair tbe broad powers conferred on tbe judge by section 536, and tbat be may in bis discretion and upon such terms as may be just allow an answer or reply to be made, or other act to be done, after tbe time limited, or by an order enlarge tbe time. Greenville v. Munford, post, 373. In McNair’s case tbe clerk entered judgment' by default final for want of an answer and afterwards refused to set aside tbe judgment on tbe ground of irregularity. When tbe appeal was beard tbe judge held tbat tbe verification of the complaint was defective, vacated tbe clerk’s judgment, and gave tbe defendant leave to answer. Tn Cahoon v. Everton, 187 N. C., 369, it was held tbat tbe plaintiff waived bis right to judgment for want of an answer by delaying bis motion therefor until tbe answer bad been filed and tbe case bad been transferred to tbe Superior Court for trial. Likewise in Roberts v. Merritt, 189 N. C., 194, it appeared tbat although tbe answer bad not been filed in time, tbe plaintiff instead of insisting on bis right to judgment twice procured a continuance of tbe cause in term; and it was held tbat retaining or striking out tbe answer was a matter addressed to tbe discretion of tbe presiding judge. In tbe first of these cases tbe decision involved a question of law; in tbe last two it involved waiver by a party and tbe exercise of discretion by tbe judge.

Tbe record in tbe case before us does not definitely show whether tbe defendant’s failure to answer was due to bis mistake of tbe law (Battle v. Mercer, 187 N. C., 437), or to tbe ruling of tbe clerk. We appreciate tbe import of a decision to tbe effect tbat tbe judge may exercise bis discretion (sec. 536) on an appeal from tbe adverse ruling of tbe clerk which raises primarily only a question o£ law; but such a decision, logically results from a liberal interpretation of the several statutes, which, while restricting the clerk, enlarge the discretionary powers of the judge. Our assurance against abuse is the experience and wisdom of the judiciary. We must therefore affirm the order of Judge Bond permitting the defendant to file his answer.

Affirmed.