Pugh v. York, 74 N.C. 383 (1876)

Jan. 1876 · Supreme Court of North Carolina

74 N.C. 383

WILLIAM PUGH v. LEANDER YORK.

Apt time sometimes depends upon lapse of time, as where a tiling is required to be done at the first term, or within a given time, it cannot be done afterwards. But it more usually refers to the order of proceeding, as fit or suitable.

Menee, where a defendant filed a petition for a reeordari, to remove a case from a Justice’s to the Superior Court, and during the pendency thereof, and before motion in the Superior Court to place the case upon the trial docket, the defendant obtained his discharge in bankruptcy: Held, that the defendant had not been guilty of laches because two years had elapsed since his discharge, before making said motion and praying to be allowed to plead such discharge.

No time is prescribed within which a discharge in bankruptcy is to be pleaded. If it is done in proper order, it‘makes no differenee whether the time be long or short.

This was a Civil ActioN, originally commenced in a Court of Justice of the Peace, and brought by writ of reeordari, to the Superior Court of EaNDOLPh county, where it. was heard at Spring Term, 1875, before his Honor, Kerr, J.

The facts pertinent to the points raised and decided in this court, are fully stated in the opinion of Justice Eeade.

From the refusal of his Honor to place the case on the trial docket, the defendant appealed.

Mendenhall db Staples, Tov/rgee ds Gregory, for appellant.

Scott Caldwell, contra.

Eeade, J.

The plaintiff had obtained judgment against the defendant beforq a Justice of the Peace. The defendant had filed a petition for a writ of recordari to take the case up to the Superior Court. While that petition was pending, and before the Superior Court had determined whether it shordd be put upon the trial docket, the defendant was declared a. bankrupt, and received his discharge.

At Spring Term of the Superior Court, 1875, the defendant moved to have the case put upon the trial docket, and offered to plead his discharge in bankruptcy. His Honor refused to put it upon the trial docket,'upon the ground that the defendant had been guilty of laches in not appealing, and refused to allow the defendant to plead his discharge in bankruptcy, because it was not offered in apt time. And in. this wo think his Honor was mistaken.

Apt tima sometimes depends upon lapse of time, as when a thing is required to be done at the first term, or within a given time, it cannot be done afterwards. But it more usually refers to the order of proceeding, as fit or suitable time.

No time is prescribed within which a discharge in bankruptcy is to be pleaded.

When anything is done in the proper order, then whether the time is long or short, makes no difference. Now, in this case, the very first step taken after the defendant was discharged, was a motion to docket, and to be allowed to plead the discharge. That was in apt time, although it was a long time — some two years — after the discharge. Why no steps had been taken during these two years, by either of the parties — by the plaintiff to dismiss, or by the defendant to have put upon the trial docket — does not appear; nor is it important. There the case stood upon the docket, continued from term to term, until Spring Term, 1875, when the defendant moved to docket and to plead his discharge. At an earlier tinte he might have moved, but at no earlier stage of the proceedings. No step backwards was taken.

There is error. This will be certified.

Per CUriah. Judgment accordingly.