Sarah Reece v. . James Reece

66 N.C. 377

• Court: Supreme Court of North Carolina
• Decided: January 5, 1872
• Status: Published

Opinion

BoydeN, J.

The defendants at tbe return term had an undoubted right to demand of the plaintiff’s counsel their authority for entering an appearance. Rev. Code, chap. 31, sec. 57, rule 16 of that section.

But if this demand for a power of attorney authorizing the counsel to enter an appearance had been made at the return term, it has been the universal practice to give time until the next term to produce and file his power of attorney or authority, and it is within the discretion of the Courut to grant this indulgence.

It has often been ruled on the circuit by the most distinguished Judges in our State, that if this demand is not made in proper time, and before the.right to appear has been recognized, the demand comes too late. And this we think the proper rule; unless their are some peculiar circumstances tending to excuse the party for not making the demand in apt time.

But however this may be, parties will not be indulged in such improper practice, as to lie by until the cause is called for trial; and then for the first time, demand this authority, and if not pi’ovided at once, insist upon a dismissal of the cause. In our case the defendants had recognized the right of the counsel to appear by answering the complaint they had filed at a previous term, and "also by procuring an order to take the testimony of the plaintiff udel)eneiss6.

There is error- This will be certified.

PER Cukiam. Judgment reversed