{
  "id": 8552230,
  "name": "JAMES N. GOLDING v. TOM F. TAYLOR",
  "name_abbreviation": "Golding v. Taylor",
  "decision_date": "1973-08-22",
  "docket_number": "No. 7328SC376",
  "first_page": "245",
  "last_page": "249",
  "citations": [
    {
      "type": "official",
      "cite": "19 N.C. App. 245"
    }
  ],
  "court": {
    "name_abbreviation": "N.C. Ct. App.",
    "id": 14983,
    "name": "North Carolina Court of Appeals"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
  "cites_to": [
    {
      "cite": "88 S.E. 2d 96",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1955,
      "opinion_index": 0
    },
    {
      "cite": "242 N.C. 324",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8614615
      ],
      "year": 1955,
      "opinion_index": 0,
      "case_paths": [
        "/nc/242/0324-01"
      ]
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  "last_updated": "2023-07-14T21:32:34.966448+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "Chief Judge Brock and Judge Campbell concur."
    ],
    "parties": [
      "JAMES N. GOLDING v. TOM F. TAYLOR"
    ],
    "opinions": [
      {
        "text": "BRITT, Judge.\nDefendant assigns as error the denial of his motion to quash the service of process and dismiss the action. This assignment has no merit.\nG.S. 1-75.4 provides in pertinent part: \u201cA-court of this State having jurisdiction of the subject matter has jurisdiction over a person served in an action pursuant to Rule 4(j) of the Rules of Civil Procedure under any of the following circumstances : * * * (3) Local Act or Omission. \u2014 In any action claiming injury to person or property or for wrongful death within or without this State arising out of an act or omission within this State by the defendant.\u201d\nWe hold that an action for alienation of affections and for criminal conversation is an action ex delicto and involves \u201cinjury to person or property\u201d within the contemplation of the above quoted statute. Hardison v. Gregory, 242 N.C. 324, 88 S.E. 2d 96 (1955). The court , found facts to the effect that process in this action was served on defendant by a person authorized under the laws of the State of Georgia to serve process, that at the time of the occurrence of the matters complained of in the complaint, defendant was a citizen and resident of North Carolina, that acts of defendant complained of occurred in North Carolina and that defendant departed from the State of North Carolina subsequent to the occurrence of the matters complained of in the complaint. The findings of fact are fully supported by the affidavits and answers to interrogatories presented at the hearing and the findings fully support the court\u2019s conclusion that personal service \u201chas been had\u201d upon the defendant and that the Superior Court of Buncombe County has jurisdiction over the cause of action and over the parties.\nDefendant assigns as error the overruling of his objections to, and the court\u2019s requiring him to answer, plaintiff\u2019s interrogatories.\nAnswers to many of the interrogatories could be incriminating to defendant. As an example, Interrogatory 17 inquires as to whether defendant saw plaintiff\u2019s wife in Atlanta, Georgia, during September of 1971, whether defendant' had sexual intercourse with plaintiff\u2019s wife in Atlanta, how defendant and plaintiff\u2019s wife traveled from Asheville to Atlanta, where defendant and plaintiff\u2019s wife stayed while in Atlanta, etc.\nPlaintiff contends that defendant failed to object to the interrogatories within ten days after they were served as required by G.S. 1A-1, Rule 33, therefore, defendant has lost his right to object. This contention is supported by Wright and Miller in their treatise on Federal Practice and Procedure; in Vol. 8, \u00a7 2173, p. 544, in their comments on Federal Rule 33, which is very similar to our Rule 33, we find: \u201cIt is' inappropriate for a party to decide for himself that an interrogatory is improper. It is his responsibility either to answer the interrogatory or to object. In the absence of an extension of time, failure to object within the time fixed by the rule is a waiver of any objection.\u201d\nWhile we agree that ordinarily, in the absence of an extension of time, failure to object to interrogatories within the time fixed by the rule is a waiver of any objection, we hold that this principle must yield to the privilege against self-incrimination guaranteed by the Fifth Amendment to the Federal Constitution. In 98 C.J.S., Witnesses, \u00a7 456, pp. 311-312, it is said: \u201cThe waiver [of the privilege against self-incrimination] may be express or specific, that is, by word of mouth or by writing, or it may be by some act amounting to waiver; in the latter event an act alleged to constitute the waiver must be carefully appraised, and any doubt must be resolved against the waiver.\u201d\nIn view of our holding on the question of waiver, that portion of Judge Thornburg\u2019s order denying defendant\u2019s objections to, and requiring him to answer, all unanswered interrogatories is vacated. The cause will be remanded to the superior court where the court will conduct a hearing, pass upon the merits of defendant\u2019s refusal to answer each of the unanswered interrogatories on ground of self-incrimination, and require defendant to answer the interrogatories where his answers would not be self-incriminating.\nWe have considered the other assignments of error brought forward and argued in defendant\u2019s brief but finding them to be without merit, they are overruled.\nRemanded.\nChief Judge Brock and Judge Campbell concur.",
        "type": "majority",
        "author": "BRITT, Judge."
      }
    ],
    "attorneys": [
      "Morris, Golding, Blue & Phillips by William C. Morris, Jr., attorneys for plaintiff appellee.",
      "Bennett, Kelly & Long, P.A., by E. Glenn Kelly, attorneys for the defendant. \u25a0 -"
    ],
    "corrections": "",
    "head_matter": "JAMES N. GOLDING v. TOM F. TAYLOR\nNo. 7328SC376\n(Filed 22 August 1973)\n1. Process \u00a7 9; Rules of Civil Procedure \u00a7 4\u2014 defendant in another state \u2014 sufficiency of process\nAn action for alienation of affections and for criminal conversation is an action ex delicto and involves \u201cinjury to person or property\u201d within the contemplation of G.S. 1-75.4; therefore, defendant was properly served and the North Carolina court obtained jurisdiction over his person and the cause of action where process was served on defendant by a person authorized under the laws of the State of Georgia to serve process, defendant was a citizen and resident of North Carolina at the time of the occurrence of the matters complained of in the complaint, the acts complained of occurred in North Carolina, and defendant departed from the State subsequent to the occurrence of the matters complained of.\n2. Constitutional Law \u00a7 33; Rules of Civil Procedure \u00a7 33\u2014 objections to interrogatories on ground of self-incrimination \u2014 waiver\nThough failure to object to interrogatories within the time fixed by Rule 33 of the Rules of Civil Procedure is ordinarily a waiver of any objection, that principle must yield to the privilege against self-incrimination guaranteed by the Fifth Amendment to the Federal Constitution; therefore, the trial court erred in denying defendant\u2019s objections to, and requiring him to answer, all unanswered interrogatories, even though defendant did not object to the interrogatories within ten days after they were served, where many answers would have been incriminating to defendant.\nAppeal by defendant from Thornburg, Judge, from order filed 12 December 1972, Buncombe Superior Court.\nThis action was instituted by the filing of complaint and issuance of summons on 22 June 1972. In the complaint, plaintiff alleges a cause of action for alienation of affections and criminal conversation occurring between 1 September 1971 and 22 June 1972. The complaint alleges: Plaintiff is a citizen and resident of Buncombe County, North Carolina, and defendant was a citizen and resident of said county and state until 9 May 1972 when he fled from North Carolina and since that time has resided in Atlanta, Georgia. Plaintiff and his wife were married to each other on 19 December 1959, thereafter had three children, and until the acts by defendant complained of, plaintiff, his wife and children enjoyed a happy home relationship. On various dates subsequent to 1 September 1971, defendant committed acts of adultery with plaintiff\u2019s wife, most of said acts being in North Carolina but others being in Georgia and Tennessee. On 9 May 1972, defendant came to Buncombe County and persuaded plaintiff\u2019s wife to leave plaintiff\u2019s household, accompany defendant to Atlanta, Georgia, and there live with him. Plaintiff prays for compensatory damages in amount of $45,000.\nThe stipulation of counsel recites that defendant received a copy of the summons and complaint from the Sheriff of Fulton County, Georgia, on 27 June 1972. On 24 July 1972 defendant\u2019s counsel obtained an order enlarging the time for answering or otherwise pleading to the complaint until 21 August 1972. On 27 July 1972 plaintiff\u2019s counsel delivered to defendant\u2019s counsel 93 interrogatories.\nOn 21 August 1972 defendant filed answer setting forth, among other things, (1) motion to quash the service of process and dismiss the action, (2) motion for stay of proceeding and transfer of action to the Superior Court of Fulton County, Georgia, and (3) motion for protective order.\nOn 25 August 1972 defendant filed answers to some 10 of plaintiff\u2019s interrogatories but objected to the others on the ground that defendant\u2019s answers to them \u201ccould or might tend to incriminate him\u201d in violation of his rights guaranteed by Amendment V of the U. S. Constitution.\nVarious other motions not pertinent to this appeal were filed and notices of hearings were served. After several continuances, a hearing was held on (1) defendant\u2019s motions set forth in his answer, (2) defendant\u2019s motion for protective order as set forth in a separate pleading, (3) defendant\u2019s objections to interrogatories, and (4) plaintiff\u2019s motion to strike certain portions of defendant\u2019s answer.\nFollowing the hearing the court entered an order setting forth specific findings of fact on the question of service of process, denied all of defendant\u2019s motions and ordered that defendant answer all interrogatories not theretofore answered. Defendant appealed.\nMorris, Golding, Blue & Phillips by William C. Morris, Jr., attorneys for plaintiff appellee.\nBennett, Kelly & Long, P.A., by E. Glenn Kelly, attorneys for the defendant. \u25a0 -"
  },
  "file_name": "0245-01",
  "first_page_order": 269,
  "last_page_order": 273
}