United American Free-Will Baptist Church v. United American Free-Will Baptist Church, 158 N.C. 564 (1912)

March 13, 1912 · Supreme Court of North Carolina
158 N.C. 564


(Filed 13 March, 1912.)

1. Courts, Superior — Time Allowed to Plead — Discretion—Former Order — Judgment by Default.

An order of the Superior Court judge allowing time to file pleadings, with provision that if the complaint is not filed within a certain time the plaintiff should suffer a nonsuit, and after the filing .of the complaint a judgment by default should be entered if the answer is not filed within a certain time, cannot control the discretion of a judge subsequently holding a term of the court in refusing to sign the judgment by default and allowing the answer to be filed. Revisal, sec. 512.

2. Courts, Superior — Time Allowed to Plead — Court’s Discretion— Appeal and Error.

The exercise of the discretion of the trial judge in permitting an extension of time to file pleadings is not reviewable on appeal. Revisal, see. 512.

Appeal from Ward1, at November Term, 1911, of Leitoir.

This action was brought by the Eree-will Baptist Church, Northeast Conference, against the Eree-will Baptist Church, Northwest Conference, for the adjudication of certain rights of property as between them. When the case was called for trial it was discovered that the pleadings had been lost, and the judge presiding thereupon made an order to the effect that the plaintiff should file a complaint within forty days after the adjournment of court, or suffer a nonsuit, and that defendant should file an answer within a like time after the filing of the complaint, and in the event of its failure to do so the plaintiff was ordered to take judgment by default. A complaint was filed in due time by the plaintiff, but defendant failed to file its answer within the time fixed by the order. At the next term of the court plaintiff tendered a judgment against defendant for the relief demanded in the complaint. Judge Ward refused to sign the judgment, and allowed the defendant an extension of time to file its answer, which was afterwards filed within the extended time. Plaintiff excepted and appealed.

*565 H. Wooten and E. R. Wooten for plaintiff,.

II. E. Shaw, Harry Simmer, and Loftin & Dawson for defendant.

WalKek, J.,

after stating tbe case: It is provided by Ee-visal, sec. 512, tbat tbe judge may, in bis discretion, and upon sucb terms as may be just, allow an answer or reply to be filed, or other act done, after tbe time limited tberefor, or by an order enlarge sucb time. Tbe judge bas a very broad discretion in sucb matters, and there is every reason why be should have it. No judgment by default bad been entered, and when tbe matter was brought to tbe attention of Judge Ward by tbe motion for judgment be bad tbe clear right, or discretion, to extend tbe time for answering. Pell’s Eevisal, sec. 512 and notes, where tbe cases upon tbe subject are noted.

This ease is governed directly and pointedly by Woodcock v. Merrimon, 122 N. C., 731, and Cook v. Bank, 131 N. C., 96, and they are strong authorities in support of tbe ruling below. In tbe first of tbe cases additional time was allowed to answer, with a stipulation tbat if defendant failed to avail himself of tbe privilege within tbe time so extended, judgment by default should be entered against him. Tbe judge, at tbe next term, ignored tbe latter part of tbe order and gave more time to answer, and it was held tbat tbe order was a proper one and entirely within tbe discretion of tbe judge, tbe exercise of which is not reviewable by this Court. It was there said tbat what order shall be made or judgment rendered in case of default in filing a pleading must be left entirely to tbe discretion of tbe succeeding judge, and the judge who ordered tbe extension of time could not control tbat discretion. Approving Gilchrist v. Kitchen, 86 N. C., 20, and quoting therefrom, tbe Court said: “Independent of Tbe Code, we bold tbat tbe right to amend pleadings in tbe.cause and allow answers or other pleadings to be filed at any time is an inherent power of tbe Superior Courts, which they may exercise at their discretion. Tbe judge presiding is best presumed to know what orders and what indulgence as to filing of pleadings will promote tbe ends of justice as they arise in each particular case, and with tbe *566exercise of this discretion this Court cannot interfere, because it is not the subject of appeal. Austin v. Clarke, 70 N. C., 458.”

In Cook v. Bank this Court had held in a former appeal that plaintiff was entitled to a judgment by default for want of an answer, and, notwithstanding this decision, it was afterwards held that when the case was transmitted to the Superior Court the judge had the discretion to refuse to enter a judgment by default, according to the opinion of this Court, and to extend the time for answering.

It is too well settled to require or even justify discussion, that the enlargement of the time for filing pleadings is a matter to be decided according to the court's discretion. Wilmington v. McDonald, 133 N. C., 548. A judge could not well decide in advance whether the defendant’s .failure to file an answer within the prescribed time will he due to laches or to such circumstances as will excuse the omission and entitle him to further time.

Appeal dismissed.