Minor v. Minor

Court of Appeals of North Carolina

Minor v. Minor

303 S.E.2d 397, 62 N.C. App. 750, 1983 N.C. App. LEXIS 2996

CourtCourt of Appeals of North Carolina

DecidedJune 21, 1983

DocketNo. 8212DC592

StatusPublished

Cited by11 cases

This text of 303 S.E.2d 397 (Minor v. Minor) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Minor v. Minor, 303 S.E.2d 397, 62 N.C. App. 750, 1983 N.C. App. LEXIS 2996 (N.C. Ct. App. 1983).

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Opinion

PHILLIPS, Judge.

The scope of this appeal is very narrow, indeed. It is not concerned with the propriety of any of the alimony or contempt orders, or of the order of income assignment, or even of the income assignment itself, none of which has been excepted to or appealed from. Nor is it concerned with the merits of the plaintiffs motion in the cause, which has not been considered and ruled on by the trial judge. The only question presented for decision is whether the judge erred in refusing to consider plaintiffs motion in the cause and dismissing it because of plaintiffs continuing and prolonged defiance of the court’s orders. In our view, no error has been shown.

The part of Rule 41(b) pertinent hereto reads as follows:

For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim therein against him. [Emphasis supplied.]

Though motions are not mentioned therein, it necessarily follows that a rule which expressly authorizes the judge to dismiss a [752]*752recalcitrant and disobedient plaintiffs action also authorizes him to dismiss a mere motion made in support of the action. That the judge was abundantly justified in doing so is equally plain and requires no discussion.

In passing, we note, however, that the power to sanction disobedient parties, even to the point of dismissing their actions or striking their defenses, did not originate with Rule 41(b). It is longstanding and inherent. 27 C.J.S. Dismissal & Nonsuit § 59. For courts to function properly, it could not be otherwise.

The order appealed from is

Affirmed.

Judges Hill and Johnson concur.

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PHILLIPS, Judge.

The scope of this appeal is very narrow, indeed. It is not concerned with the propriety of any of the alimony or contempt orders, or of the order of income assignment, or even of the income assignment itself, none of which has been excepted to or appealed from. Nor is it concerned with the merits of the plaintiffs motion in the cause, which has not been considered and ruled on by the trial judge. The only question presented for decision is whether the judge erred in refusing to consider plaintiffs motion in the cause and dismissing it because of plaintiffs continuing and prolonged defiance of the court’s orders. In our view, no error has been shown.

The part of Rule 41(b) pertinent hereto reads as follows:

For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim therein against him. [Emphasis supplied.]

Though motions are not mentioned therein, it necessarily follows that a rule which expressly authorizes the judge to dismiss a [752]*752recalcitrant and disobedient plaintiffs action also authorizes him to dismiss a mere motion made in support of the action. That the judge was abundantly justified in doing so is equally plain and requires no discussion.

In passing, we note, however, that the power to sanction disobedient parties, even to the point of dismissing their actions or striking their defenses, did not originate with Rule 41(b). It is longstanding and inherent. 27 C.J.S. Dismissal & Nonsuit § 59. For courts to function properly, it could not be otherwise.

The order appealed from is

Affirmed.

Judges Hill and Johnson concur.

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Bluebook (online)

303 S.E.2d 397, 62 N.C. App. 750, 1983 N.C. App. LEXIS 2996, Counsel Stack Legal Research, https://law.counselstack.com/opinion/minor-v-minor-ncctapp-1983.

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