{ "id": 8629336, "name": "CHARLES F. DUNN v. VICTORIA JONES", "name_abbreviation": "Dunn v. Jones", "decision_date": "1928-03-28", "docket_number": "", "first_page": "354", "last_page": "356", "citations": [ { "type": "official", "cite": "195 N.C. 354" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "189 N. C., 656", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8654913 ], "opinion_index": 0, "case_paths": [ "/nc/189/0656-01" ] }, { "cite": "186 N. C., 111", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8652892 ], "opinion_index": 0, "case_paths": [ "/nc/186/0111-01" ] }, { "cite": "189 N. C., 194", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8653778 ], "opinion_index": 0, "case_paths": [ "/nc/189/0194-01" ] }, { "cite": "194 N. C., 683", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8616139 ], "opinion_index": 0, "case_paths": [ "/nc/194/0683-01" ] }, { "cite": "192 N. C., 626", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625618 ], "opinion_index": 0, "case_paths": [ "/nc/192/0626-01" ] }, { "cite": "187 N. C., 437", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8654011 ], "opinion_index": 0, "case_paths": [ "/nc/187/0437-01" ] }, { "cite": "179 N. C., 237", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8655556 ], "opinion_index": 0, "case_paths": [ "/nc/179/0237-01" ] }, { "cite": "174 N. C., 283", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11253529 ], "opinion_index": 0, "case_paths": [ "/nc/174/0283-01" ] }, { "cite": "125 N. C., 185", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11273313 ], "opinion_index": 0, "case_paths": [ "/nc/125/0185-01" ] }, { "cite": "191 N. C., 166", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8628158 ], "opinion_index": 0, "case_paths": [ "/nc/191/0166-01" ] }, { "cite": "192 N. C., 251", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8621239 ], "opinion_index": 0, "case_paths": [ "/nc/192/0251-01" ] } ], "analysis": { "cardinality": 436, "char_count": 7074, "ocr_confidence": 0.454, "pagerank": { "raw": 3.2695241631772045e-07, "percentile": 0.8700022665414084 }, "sha256": "72814437ff39d3d6670ab17c7be557073e562ecb6707ea340b2a6d33069e8c75", "simhash": "1:81630ddcb54c271e", "word_count": 1255 }, "last_updated": "2023-07-14T20:22:12.241767+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "CHARLES F. DUNN v. VICTORIA JONES." ], "opinions": [ { "text": "BeogdeN, J.\nOne phase of this controversy was disposed of by this Court in Dunn v. Jones, 192 N. C., 251. This case has been referred to as the rich young ruler case. The Court held that plaintiff\u2019s title was defective in the particulars pointed out in the opinion. Thereafter on 22 June, 1927, plaintiff instituted the present action in ejectment for the possession of the land. The plaintiff excepts to the judgment rendered by the court upon the ground that the trial judge had no power to set aside the judgment by default final rendered by the clerk. This contention cannot be sustained. When the judgment by default was entered by the clerk the defendant excepted and appealed to the judge. Hence the whole case was regularly before the court upon the appeal. Both parties were thereupon fixed with notice of everything that was regularly done in the cause. Foster v. Allison Corporation, 191 N. C., 166. Under the law, the trial judge had the power in the exercise of his sound legal discretion to set aside the judgment under C. S., 600, and to permit the defendant to file an answer under C. S., 536. A judgment may be set aside under C. S., 600, if the moving party can show excusable neglect, and that he has a meritorious defense. In the case at bar the trial judge found all the necessary and essential facts to support his order vacating the judgment by default. Norton v. McLaurin, 125 N. C., 185; Crumpler v. Hines, 174 N. C., 283; Jernigan v. Jernigan, 179 N. C., 237; Battle v. Mercer, 187 N. C., 437; Helderman v. Mills Co., 192 N. C., 626. In Aldridge v. Ins. Co., 194 N. C., 683, the Court referring to Public Laws 1921, Ex. Ses., ch. 92; Public Laws 1923, ch. 53; Public Laws 1924, Ex. Ses., eh. 18, said: \u201cThese statutes have reference to the clerk and were not intended to impair the broad powers conferred on the judge, who \u2018may 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 limited or by an order to enlarge the time. \u201d Roberts v. Merritt, 189 N. C., 194; McNair v. Yarboro, 186 N. C., 111.\nMoreover by chapter 66, Public Laws 1927, the time for filing answer was enlarged to thirty days. This act went into effect 1 July, 1927. Hence the answer was filed in proper time. \u201cNo person can claim a vested right in any particular mode of procedure for the enforcement or defense of his rights. Where a new statute deals with procedure only, prima facie it applies to all actions \u2014 those which have accrued or are pending, and future actions.\u201d Stacy, C. J., in Martin v. Vanlaningham, 189 N. C., 656. The judgment rendered is amply supported by numerous authorities in this State.\nPlaintiff in his brief says: \u201cI take much pleasure in informing this Court that I have read every one of your reports from Yol. 140 to 193, inclusive, and with the hundreds of opinions, I have found nothing that in law would support the judgment sent up in this record.\u201d In view of the fact that the uniform holding of the Court supports the judgment rendered, the plaintiff\u2019s aforesaid declaration in the brief, calls to mind the colloquy between Philip and a notable citizen of Ethiopia, occurring long ago. The distinguished citizen of Ethiopia was undertaking to read the Book of the Law, and the great evangelist propounded to him this query: \u201cUnderstandest thou.what thou readest?\u201d Acts 8:30.\nAffirmed.", "type": "majority", "author": "BeogdeN, J." } ], "attorneys": [ "Charles F. Bunn, in propria persona, for plaintiff.", "Shaw & Jones for defendant." ], "corrections": "", "head_matter": "CHARLES F. DUNN v. VICTORIA JONES.\n(Filed 28 March, 1928.)\nX. Judgments \u2014 Setting Aside for Surprise, Excusable Neglect, etc. \u2014 Power of Trial Judge to Set Aside.\nUpon a proper finding of a meritorious defense and excusable neglect, the judge of the Superior Court, on appeal from the clerk, has authority to set aside a judgment rendered by the clerk, against the defendant by default of an answer, to which exception has been duly entered, before the clerk, O. S., 600; and to permit an answer to be filed, C. S., 536.\n2. Constitutional Law \u2014 Vested Rights \u2014 Civil Procedure.\nNo vested right can be acquired under a statute which only relates to the procedure to be observed for the enforcement or the defense of a right.\n3. Statutes \u2014 Construction\u2014Statutes Relating to Civil Procedure.\nA new statute making a change only in procedure prima facie applies to all actions, whether already accrued at the time of its passage, or then pending or accruing in the future.\nCivil actioN, before Granmer, J., at November Term, 1927, of IiENOIK.\nSummons was issued and served 22 June, 1927, and complaint filed on tbe same date. Tbe plaintiff sued tbe defendant for tbe possession of tbe land described in tbe complaint. Tbe answer was filed according to tbe record on 13 June, 1927, nine days before tbe summons was issued. It is assumed, however, upon reading tbe judgment tbat tbis was an error, and tbat 13 July was tbe proper date upon wbicb tbe answer was filed. On 18 July, 1927, tbe plaintiff made a motion before tbe clerk for judgment by default final upon tbe ground \u201ctbat no defense bond nor was any answer filed within the time allowed by law.\u201d Judgment by default final was duly rendered by the clerk on 12 September, 1927. The defendant excepted to the judgment and appealed to the judge of the Superior Court. Notice of appeal was waived. Thereafter the cause was heard by E. H. Oramner, judge presiding, who rendered the following judgment:\n\u201cThis cause coming on to be heard before his Honor, E. H. Cranmer, judge, and being heard, and it. appearing to the court that the defendant in the above-entitled action has a good and meritorious defense to said cause, and it further appearing to said court that the said defendant was ill and not physically able to attend her affairs or to file answer in this cause, and it further appearing to said court that the said defendant was guilty of no laches on her part, but was only guilty of such conduct as amounted to excusable neglect, and it further appearing to said court that on the day following the expiration of twenty days from the date of the service of the summons in this cause the said defendant filed her answer with proper bond in the sum of $200, with sufficient surety as is required by statute before the plaintiff in said action moved for judgment therein, and it further appearing to said court that the time to answer did not expire until after 1 July, at which time the act extending the time to thirty days went into effect;\n\u201cIt is now, therefore, ordered, adjudged and decreed, on motion of Shaw & Jones, and J. E. Liles, attorneys for the defendant, that the judgment heretofore entered by the clerk of the Superior Court in this cause be, and the same is hereby declared void and set aside.\n\u201cIt is further ordered, adjudged and decreed that the answer filed on behalf of the defendant in this cause, together with the bond, be and the same are hereby declared filed and allowed to be filed, and the said cause is retained to the end that the same may be heard upon its merits.\u201d\nFrom the foregoing judgment plaintiff appealed.\nCharles F. Bunn, in propria persona, for plaintiff.\nShaw & Jones for defendant." }, "file_name": "0354-01", "first_page_order": 426, "last_page_order": 428 }