John S. Reese & Co. v. Jones, 84 N.C. 597 (1881)

Jan. 1881 · Supreme Court of North Carolina

84 N.C. 597

JOHN S. REESE & CO. v. JAMES F. JONES.

Filing Answer — Discretion of Judge.

The refusal of a judge to allow an answer to be filed at the trial term is not reviewable; it is a matter addressed to his discretion.

{Bodclie v. Woodard, S3 N. C., 2, eited -and approved.)

Civil ActioN tried at Fall Term, 1880, of Greene Superior Court, before Gudger, J.

The summons was issued on the 27th of January, 1880, returnable to spring term, 1880, at which term an entry was made on th.e docket as follows: “ Time to file pleadings as <of spring term, 1880.” About three months prior to fall term of same year, the trial term-., the plaintiffs filed' their-complaint duly verified, in which they declared upon two-writings obligatory under seal for the payment' of money— one dated April 1st, 18-79, for three hundred and fifty dollars, and the other dated May 1st, 18-79, for four hundred and fifty dollars, both- due on the first day of November following.-

At th-e time-of filing the complaint, the plaintiffs’’ counsel notified the defendant’s counsel of the fact, and called! - his attention to the fact that his client, the defendant,, was in Snow Hill, the county town of Greene- county. On the fourth day of fall term, 1880, th-e case being called in regular order on the docket, the defendant offered bis answer and ashed leave to file the same, when on motion of plaintiffs’ counsel, the court in the exercise of its discretion refused to allow the defendant to file it, and rendered judgment against him for the amount claimed by the plaintiffs, from which judgment the defendant appealed.

Messrs. Strong, Monroe and Dortch, for plaintiffs.

Messrs. Galloway & Albritton, for defendant.

Ashe, J.

The case of Boddie v. Woodard, 83 N. C., 2, was very much like this. There, the entry was “ complaint filed, time to demur or answer.” At the ensuing term the defendant’s counsel moved to file an answer, which the court refused and gave judgment for the plaintiff. This court on the appeal of defendant held that while it would not undertake definitely to fix the limits of the extension in such cases, they cannot he allowed to reach the trial term, and as the motion to put in the answer at that term was addressed to the discretion of His Honor, its exercise could not be reviewed and controlled in this court.

Ours is a somewhat stronger case than -that, for here, the complaint was filed three months before the trial term, and-the defendant’s counsel was notified, at the time, of the' fact of the complaint being filed, and. was also informed-¡that his client -was then in town. The defendant was guilty •of laehes. There is no excuse for the delay. The allowing the answer, to be filed at the trial term was a pure matter of discretion, and is not reviewable in this court. .

No error. Affirmed.