Mills v. McCuen

161 S.E.2d 628, 1 N.C. App. 403, 1968 N.C. App. LEXIS 1092

• Court: Court of Appeals of North Carolina
• Decided: June 12, 1968
• Status: Published

Opinion

Campbell, J.

No default judgment had been taken by the plaintiff prior to the motion filed on behalf of the defendant for an extension of time. Accordingly, G.S. 1-220 is not applicable and the defendant is not required to show mistake, inadvertence, surprise, or excusable neglect.

Service of process in this case was had pursuant to G.S. 1-105, commonly referred to as the non-resident motorist statute. This statute provides: “The court in which the action is pending shall order such continuance as may be necessary to afford the defendant reasonable opportunity to defend the action.”

G.S. 1-108 provides that when a defendant is served under the provisions of G.S. 1-105, “on application and sufficient cause shown at any time before judgment, (such defendant) must be allowed to defend the action; * * *”

It is to be noted that under this statute, if sufficient cause can be shown before judgment, the defendant “must be allowed to defend the action; * * *”

These statutes pertaining to service of process upon a non-resident motorist contemplate giving such a defendant an opportunity to defend even beyond the right of the judge in his discretion to extend the time. A 'fortiori, the judge in his discretion may do so under G.S. 1-152 which provides: “The judge may likewise, in his discretion, and upon such terms as may be just, allow an answer or reply to be made, or other act to be done, after the time limited, or by an order may enlarge the time.”

“Ordinarily, where a judge is vested with discretion, his doing or refusing to do the act in question is not reviewable upon appeal.” Harmon v. Harmon. 245 N.C. 83, 86, 95 S.E. 2d 355.

In the present case the judge not only found good cause for extending the time to plead on behalf of the defendant but allowed the extension in his discretion. No abuse of discretion has been shown, and there was sufficient evidence below to support the court’s finding of sufficient cause.

No error.

BRitt and Morris, JJ., concur.