Town of Greenville v. Munford, 191 N.C. 373 (1926)

March 10, 1926 · Supreme Court of North Carolina

191 N.C. 373

TOWN OF GREENVILLE v. C. T. MUNFORD and J. CAROLINA MUNFORD.

(Filed 10 March, 1926.)

1. Judgments — Consent—Attorney and Client.

Where through mistake or otherwise an attorney not representing a party to an action, has signed his consent to an order making a temporary restraining order permanent, the judgment so entered is not binding upon the party litigant.

2. Pleadings — Extension of Time — Clerks of Court — Judge — Court— Jurisdiction — Statutes.

Where á consent judgment has been entered by mistake, and the trial judge has held that it did not operate as an estoppel on the defendant, and has set it aside, it is within his broad discretionary power conferred by statute to permit tbe answer to be then filed, as such authority is not taken away under the procedure in such instances now given by a separate statute to the clerk’of the court.

S. Appeal and Error — Findings of Fact — Motion.

The findings of fact by the trial judge in relation to his rulings as to the law applicable on appellant’s motion, are conclusive on appeal.

Appeal by plaintiff from Dunn, J:, at January Term, 1926, of Pitt.

Affirmed.

Tbe defendants own a lot on Evans Street in tbe town of Greenville. It is alleged tbat they are attempting to appropriate a part of tbe street to tbeir private use by building beyond tbeir line a brick wall, wbieb when completed will be a permanent structure. Tbe plaintiff brought suit and obtained an order temporarily restraining tbe defendants from putting up tbe wall. On 11 December, 1925, tbe order was made permanent and it was adjudged tbat tbe plaintiff recover its costs. Soon afterwards upon tbe defendants’ motion Judge Dunn modified tbe former judgment and gave tbe defendants leave to answer. Tbe plaintiff excepted and appealed.

D. M. Clark for plaintiff.

Skinner & Whedbee for defendants.

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 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.