Roberts v. . Allman

Citations

• 11 S.E. 424
• 106 N.C. 391

Syllabus

<p>Summons — Irregularity in Return Term — Time of Filing Complaint— Counsel — Judgment by Default.</p> <p>1. Summons was returned at November Term, 1883, of the Superior Court. Complaint was not filed until near the end of the term of four weeks. At the Fall Term, 1884, judgment by default, for want of an answer, was entered and reference ordered. Defendants and their counsel appeared before the referee in March, 1887,. and from time to time until May 1887, on which day counsel, who had not previously appeared for them, moved to dismiss the proceeding on account of irregularity in the manner of obtaining judgment. Upon the denial of this motion, one was made before the Court to set aside the judgment upon the additional ground that it was a surprise: Held, (1) that the Court below properly refused this motion; (2) defendants did not exercise due diligence-in seeking relief.</p> <p>2. Where complaint is filed after the return term, it stands on file during-the first three days of the next succeeding term, and judgment by default for want of answer at that term may be rendered.</p> <p>3. Summons “to appear before the Judge of the Superior Court at the Court to be held for the county of Buncombe, at the court-house in Asheville, on the third Monday after the .Monday of November,” it being the only Court for that part of the year, is not irregular.</p> <p>4. A general appearance, even before the referee, cures all antecedent. irregularity.</p> <p>5. Defendants having been personally served with summons, could not: seek relief on the ground of excusable neglect, except by motion made in twelve months from the rendition of the judgment.</p> <p>6. It is not enough that parties to a suit should engage counsel and leave it entirely in his charge. They should, in addition to this, give to it that amount of attention which a man of ordinary prudence usually gives to his important busmen.</p>