King v. . Rudd

37 S.E.2d 116, 226 N.C. 156, 1946 N.C. LEXIS 470

• Court: Supreme Court of North Carolina
• Decided: February 27, 1946
• Status: Published

Opinion

Stacy, C. J.

The plaintiffs were clearly entitled to judgment by default final when the defendants omitted to answer by 10 August, 1936. G-. S., 1-211. The failure of the plaintiffs to move promptly for such a judgment did not work a discontinuance of the action. University v. Lassiter, 83 N. C., 38.

Whether the executor, who stands in the shoes of the deceased, and the Nickses, who claim under her through purchase pendente lite, should be allowed to file answer at this late date was a matter resting in the sound discretion of the trial court. O’Briant v. Bennett, 213 N. C., 400, 196 S. E., 336; Washington v. Hodges, 200 N. C., 364, 156 S. E., 912; Roberts v. Merritt, 189 N. C., 194, 126 S. E., 513; Church v. Church, 158 N. C., 564, 74 S. E., 14; Wilmington v. McDonald, 133 N. C., 548, 45 S. E., 864; Byrd v. Byrd, 117 N. C., 523, 23 S. E., 324; McIntosh on Procedure, 507. No pleading has been filed by J. F. Rudd and wife, Mary Rudd. Ruth Rudd Nicks is a daughter of the deceased.

The order of the clerk, having been entered without notice to the plaintiffs, was subject to approval or disapproval by the judge. We cannot say that error appears on the face of the record. An exception to “the signing of the judgment” presents only the face of the record for inspection or review. Rader v. Coach Co., 225 N. C., 537; Crissman v. Palmer, 225 N. C., 472; Smith v. Smith, 223 N. C., 433, 27 S. E. (2d), 137; Cooper v. Cooper, 221 N. C., 124, 10 S. E. (2d), 237; Query v. Ins. Co., 218 N. C., 386, 11 S. E. (2d), 139. Obviously, the judgment is supported by the record. Hence, the exception must fail. Ingram v. Mortgage Co., 208 N. C., 329, 180 S. E., 594; Wilson v. Charlotte, 206 N. C., 856, 175 S. E., 306.

Affirmed.