Town of Greenville v. Munford

Supreme Court of North Carolina

Town of Greenville v. Munford

131 S.E. 740, 191 N.C. 373, 1926 N.C. LEXIS 78

CourtSupreme Court of North Carolina

DecidedMarch 10, 1926

StatusPublished

Cited by1 cases

This text of 131 S.E. 740 (Town of Greenville v. Munford) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Town of Greenville v. Munford, 131 S.E. 740, 191 N.C. 373, 1926 N.C. LEXIS 78 (N.C. 1926).

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Opinion

Adams, J.

Tbis was a motion to set aside a judgment for surprise under C. S., 600. Tbe judgment recites bis Honor’s finding of tbe facts. Tbe summons and tbe complaint were served on tbe defendants on 2 December, 1925, and on 11 December, tbe temporary restraining order was made permanent. Tbis judgment, wbieb in effect, was final, was presented for approval to an attorney wbo, as tbe plaintiff thought, represented tbe defendants. Tbe attorney did not represent tbe defendants and for tbis reason bis approval, which apparently bad been given through some sort of inadvertence or mistake, was not binding on them. Tbe time for filing an answer bad not expired, as only nine days bad elapsed between tbe service of tbe summons and tbe signing 'of tbe final judgment; and tbe defendants have a meritorious defense. Judge Dunn declined to vacate or modify tbe restraining order, but be held tbat tbe judgment did not operate as an estoppel against tbe defendants’ right to set up tbis defense and granted an extension of time for answering tbe complaint.

In tbis we find no error. The findings of fact are conclusive and tbe judge was authorized to grant an extension of time beyond twenty days for filing tbe answer. In McNair v. Yarboro, 186 N. C., 111, it is said: “And we consider it well to state further tbat, while tbis chapter 92, in *375 section 3, (Laws 1921), provides tbat ‘where'a copy of the complaint has been served upon each of the defendants the clerk shall not extend the time for filing answer beyond twenty days after such service,’ this restriction applies to the clerk, and does not and is not intended to impair the broad, powers conferred on the judge in this respect by 0. S., 536, to the effect that when the cause is properly before him ‘he may, in his discretion and upon such terms as may be just, allow an answer or reply to be made or other act done after the time or by an order to enlarge the time.’ ” The judgment is

Affirmed.

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Adams, J.

Tbis was a motion to set aside a judgment for surprise under C. S., 600. Tbe judgment recites bis Honor’s finding of tbe facts. Tbe summons and tbe complaint were served on tbe defendants on 2 December, 1925, and on 11 December, tbe temporary restraining order was made permanent. Tbis judgment, wbieb in effect, was final, was presented for approval to an attorney wbo, as tbe plaintiff thought, represented tbe defendants. Tbe attorney did not represent tbe defendants and for tbis reason bis approval, which apparently bad been given through some sort of inadvertence or mistake, was not binding on them. Tbe time for filing an answer bad not expired, as only nine days bad elapsed between tbe service of tbe summons and tbe signing 'of tbe final judgment; and tbe defendants have a meritorious defense. Judge Dunn declined to vacate or modify tbe restraining order, but be held tbat tbe judgment did not operate as an estoppel against tbe defendants’ right to set up tbis defense and granted an extension of time for answering tbe complaint.

In tbis we find no error. The findings of fact are conclusive and tbe judge was authorized to grant an extension of time beyond twenty days for filing tbe answer. In McNair v. Yarboro, 186 N. C., 111, it is said: “And we consider it well to state further tbat, while tbis chapter 92, in *375 section 3, (Laws 1921), provides tbat ‘where'a copy of the complaint has been served upon each of the defendants the clerk shall not extend the time for filing answer beyond twenty days after such service,’ this restriction applies to the clerk, and does not and is not intended to impair the broad, powers conferred on the judge in this respect by 0. S., 536, to the effect that when the cause is properly before him ‘he may, in his discretion and upon such terms as may be just, allow an answer or reply to be made or other act done after the time or by an order to enlarge the time.’ ” The judgment is

Affirmed.

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Bluebook (online)

131 S.E. 740, 191 N.C. 373, 1926 N.C. LEXIS 78, Counsel Stack Legal Research, https://law.counselstack.com/opinion/town-of-greenville-v-munford-nc-1926.

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