Wilmington v. McDonald, 133 N.C. 548 (1903)

Dec. 1, 1903 · Supreme Court of North Carolina
133 N.C. 548


(Filed December 1, 1903.)

1. PLEADINGS — Time to Plead — Findings of Oourt — Appeal.

A finding by the trial judge that the time for filing an answer has expired is conclusive, and any extension of the time is within the discretion of the court.


An exception that “the court erred in rendering said judgment” is too general to be considered on appeal.


The statute of limitations can only be raised by answer.

4. TAXATION. — Parties—Appeal.

Where a judgment for taxes includes the poll tax of one not a party to the action, this portion will be stricken out on appeal.

5. TAXATION — Taxes—Interest.

A judgment for taxes should include interest on the amount due.

ActioN by the City of Wilmington against Bridget McDonald and others, heard by Judge B. B. Peebles> at January Term, 1903, of the Superior Court of New Hanover County. Erom a judgment for the plaintiff the defendant appealed.

W. J. Bellamy and Shepherd & Shepherd, for the plaintiff.

L. V. Grady, for the defendants.

Connor, J.

This action is prosecuted by the plaintiff, the City of Wilmington, for the purpose of collecting certain taxes assessed against the property of the defendants specifically described in the complaint. The plaintiff alleges that the land was lawfully assessed for taxation by said city at the valuation and the rate set forth for years enumerated, amounting *549to $534.38. Tbe complaint also alleges that certain taxes were levied upon the “personal property and poll of tbe defendants, • Hugh McDonald and Bridget McDonald, amounting to $18.35.” Hugh McDonald is not a party to this action. Tbe complaint alleges: “Tbat under tbe laws providing for tbe collection of taxes by tbe City of Wilmington tbe taxes for eaeb and every year became due and payable on or before tbe 31st day of December of each and every year for wbiob said taxes were levied and assessed. Tbe judgment demanded is tbat the plaintiff recover tbe amount of said taxes and interest; tbat tbe amounts so due be declared a lien upon said property, and tbat a sale thereof be ordered,” etc. Tbe complaint was duly verified.

Tbe case on appeal states that on tbe call of the motion docket the plaintiff asked for judgment against tbe following of said defendants: Bridget McDonald, William Sbeeban and wife, William Smithson and wife. Tbe said defendants, through counsel, appeared and asked leave to file an answer to said complaint. The Court refused tbe said defendants tbe right to file an answer, for tbe reason tbat tbe same was not filed within tbe time prescribed by law or by tbe rule adopted by tbe members of tbe bar of said county. Thereupon tbe Court rendered judgment as demanded in tbe complaint.

Tbe defendants moved bis Honor to set aside tbe judgment upon tbe ground that the same is void in law and contrary to tbe statutes and the charter of said city, and upon tbe further ground tbat bis Honor bad no authority in law to render the same. His Honor declined to allow said motion, and defendants appealed. They assign as error bis Honor’s refusal to permit them to file an answer. Tbe finding of fact tbat tbe time for filing answer bad expired is conclusive, and it is too well settled to require or justify discussion tbat the extension of time is a matter within the discretion of tbe Court. Boddie v. Woodard, 83 N. C., 2; Reese v. Jones, 84 N. C., 597.

*550“The Court erred in rendering said judgment.” The exception is too general. There is no suggestion in the assignment as to the respect in which, the Court erred. The defendants’ counsel relied in. this Court upon the bar of the statute of limitations, especially of the provision in the charter of the city (1858-’59, chapter 198). The statute of limitations can only be raised by answer, but it would seem that this Court has held, in Wilmington v. Cronly, 122 N. C., 383, that if pleaded the statute would not have availed the defendant. As no answer was filed and we find no error on the record, we affirm the judgment without deciding several questions argued before us. We find, however, that the judgment includes the poll tax of Hugh McDonald, who is not a party to the action, and it is not alleged that he owned the property sought to be sold. This amount should be stricken out. We see no reason why the amount due as taxes should not bear interest. The assessment has the force and effect of a judgment and carries interest under the statute.