#### MARGARET J. CAMPBELL v. CITY OF ASHEVILLE.

(Filed 13 December, 1922.)

Pleadings — Motion to Extend Time for Piling — Courts—Clerks of Court— Jurisdiction — Appeal and Error.

Under tbe provisions of Revisal, sec. 466, before those of Public Laws 1921, ch. 304, went into effect, the latter being an act to restore the Code of Civil Procedure in regard to pleadings and practice, and to expedite and reduce the cost of litigation, it was discretionary with the judge of the Superior Court to allow extension of time for the filing of pleadings, and where the complaint in an action had not been filed in the time allowed by law, under the provisions of the former statute, and the later procedure is in effect at the time of the plaintiff’s motion for time to file complaint, such motion should be made before the judge, and not before the clerk of the court; and where it has been made before the clerk, and the judge has erroneously held that the clerk has power to extend the time for filing the complaint, the case will be remanded, on appeal, in order that the judge may treat the appeal from the clerk as if the motion had originally been made before him, and pass upon it in the exercise of his sound discretion.

Appeal by defendant from Shaw, J., at tbe April- Term, 1922, of BUNCOMBE.

Wells & Swain and Jones, Williams & Jones for plaintiff.

George Pennell and J. W. Haynes for defendant.

An a mk; J.

In this action tbe summons was issued on 24 May, 1919, returnable to tbe July term under tbe practice then prevailing, but tbe complaint was not filed until 3 November, 1921. On 19 November, 1921, in pursuance of a motion duly served on tbe plaintiff, tbe defendant made a motion before tbe clerk to dismiss tbe action, and at tbe bearing tbe clerk granted tbe motion “as a matter of law under Public Laws of 1920, cb. 96.” Tbe plaintiff appealed, and tbe judge held that tbe clerk bad power in bis discretion to allow time in wbicb to file tbe complaint and reversed tbe judgment. Thereupon tbe defendant excepted and appealed to tbe Supreme Court.

Tbe act entitled “An act to restore tbe provisions of tbe Code of Civil Procedure in regard to process and pleadings, and to expedite and reduce tbe cost of litigation” went into effect on 1 July, 1919, and Consolidated Statutes on 1 August, 1919. Public Laws 1919, cb. 304; C. S., 8107. At tbe time tbe summons was issued tbe following statute was in force: “Tbe plaintiff shall file bis complaint in tbe clerk’s office on or before tbe third day of tbe term to wbicb tbe action is brought, otherwise tbe suit may, on motion, be dismissed at tbe cost of tbe plaintiff.” Revisal, sec. 466. Tbe clause “otherwise tbe suit may, on motion, be dismissed” *493was omitted in tbe act of 1919, but was brought forward in Consolidated Statutes (sec. 505), and continued in effect until amended at tbe Extra Session of 1920. Public Laws, Extra Session 1920, eb. 96; Public Laws 1921, cb. 96. Tbe Extra Session of 1921 convened after tbe clerk’s judgment in tbis cause was rendered. Tbe parties concede tbat tbe sole question presented is whether tbe clerk bad legal authority to allow tbe complaint to be filed under tbe circumstances disclosed by tbe record.

In our opinion tbe appeal is not to be determined by tbe provisions of tbe acts of 1919 or 1920, either as originally enacted or as subsequently amended. Tbe several acts restoring tbe provisions of tbe Code of Civil Procedure were evidently not intended to apply to cases in which tbe summons was issued before either of tbe acts went into effect, and was made returnable before tbe court in term. Tbe authority of tbe clerk to extend tbe time for filing pleadings in a civil action is confined to cases in which tbe summons is returnable under tbe present procedure before tbe clerk at a fixed date, and not to cases in which under tbe former practice it was made returnable before tbe judge.

In tbe present case tbe summons was issued before either of these acts went into effect; tbe defendant was summoned to appear before tbe judge at tbe July term of tbe Superior Court; and whether tbe time for filing pleadings should be enlarged was a question to be determined by tbe judge as under tbe former practice and not by tbe clerk. We think tbe clerk bad no jurisdiction to dispose of tbe motion, and tbat bis Honor should have treated tbe appeal as a motion made originally before him, and should have exercised bis discretion in saying whether in tbe administration of justice tbe plaintiff should be permitted to file her complaint. C. S., 637; In re Anderson, 132 N. C., 243; Gwinn v. Parker, 119 N. C., 19; Bailey v. Comrs., 120 N. C., 388; Woolsack v. Merriman, 122 N. C., 735; Church v. Church, 158 N. C., 565; Lloyd v. Limber Co., 167 N. C., 97.

Tbe judgment is reversed, and tbe cause remanded for further action by tbe presiding judge.

Reversed and remanded.