{ "id": 8631382, "name": "BANK OF PINEHURST v. R. A. DERBY", "name_abbreviation": "Bank of Pinehurst v. Derby", "decision_date": "1939-05-24", "docket_number": "", "first_page": "669", "last_page": "670", "citations": [ { "type": "official", "cite": "215 N.C. 669" } ], "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": "193 S. E., 737", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "212 N. C., 513", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8613481 ], "opinion_index": 0, "case_paths": [ "/nc/212/0513-01" ] }, { "cite": "72 S. E., 980", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "157 N. C., 209", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8656990 ], "opinion_index": 0, "case_paths": [ "/nc/157/0209-01" ] }, { "cite": "141 S. E., 587", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "195 N. C., 203", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8628357 ], "opinion_index": 0, "case_paths": [ "/nc/195/0203-01" ] }, { "cite": "50 S. E., 221", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "137 N. C., 515", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8657008 ], "opinion_index": 0, "case_paths": [ "/nc/137/0515-01" ] } ], "analysis": { "cardinality": 253, "char_count": 3656, "ocr_confidence": 0.478, "pagerank": { "raw": 1.7055173281119677e-07, "percentile": 0.7015847255959711 }, "sha256": "e852c67418684180e68575452db67fc9f1b6954d81e53e6ef1e30bbd812b75a1", "simhash": "1:152aa1b48083a179", "word_count": 619 }, "last_updated": "2023-07-14T22:25:15.554902+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "BANK OF PINEHURST v. R. A. DERBY." ], "opinions": [ { "text": "Stacy, C. J.\nBy bearing tbe two motions together the defendant was apparently disadvantaged, for he could not resist the plaintiff\u2019s motion in its entirety or that part asking for judgment by default, without waving his special appearance. Scott v. Life Assn., 137 N. C., 515, 50 S. E., 221. Nor could he ask for time to plead to the merits without making a general appearance. Abbitt v. Gregory, 195 N. C., 203, 141 S. E., 587; Currie v. Mining Co., 157 N. C., 209, 72 S. E., 980. He gave notice of appeal from the denial of his motion, which was his right. Denton v. Vassiliades, 212 N. C., 513, 193 S. E., 737. Cf., Johnson v. Ins. Co., ante, 120. He still has thirty days \u201cafter the final determination of a motion to dismiss upon a special appearance,\u201d C. S., 509, within which to file demurrer or answer to the complaint.\nThe special appearance of the defendant, if it is to be preserved, precludes separate consideration on appeal of the dual rulings made by the clerk. The judgment of the Superior Court is in solido.\nThe judgment will be vacated and the cause remanded for further proceedings as to justice appertains and the rights of the parties may require.\nError and remanded.'", "type": "majority", "author": "Stacy, C. J." } ], "attorneys": [ "U. L. Spence for plaintiff, appellee.", "Hoyle & Edwards for defendant, appellant." ], "corrections": "", "head_matter": "BANK OF PINEHURST v. R. A. DERBY.\n(Filed 24 May, 1939.)\nAppearance \u00a7 1: Judgments \u00a7 11 \u2014 Defendant malting a special appearance and moving to dismiss is entitled to final determination of his motion prior to hearing of plaintiff\u2019s motion for judgment by default.\nDefendant made a special appearance and moved to dismiss the action for want of proper service. Later plaintiff moved to dismiss defendant\u2019s motion and for judgment by default. The clerk heard both the motions together; denied defendant\u2019s motion and granted plaintiff\u2019s motion; and upon appeal the Superior Court affirmed the judgment of the clerk as a whole. Held: Defendant was entitled to appeal from an adverse ruling by the clerk and to a final determination of his motion prior to the hearing of plaintiff\u2019s motion for judgment by default, since he could not resist plaintiff\u2019s motion without making a general appearance, and since he is entitled to answer or demur within 30 days after the final determination of his motion to dismiss upon a special appearance, C. S., 509, and the cause is remanded by the Supreme Court for further proceedings according to law.\nAppeal by defendant from Bivens, J., at December Term, 1938, of Moore.\nCivil action to recover deficiency arising from stock assessment levied under tbe provisions of Michie\u2019s Code (1935), sec. 219 (f).\nTbe plaintiff is a resident corporation; tbe defendant a nonresident of tbe State, owning real estate in Richmond County.\nAn order that service be made by publication and attachment was signed by tbe clerk on 11 April, 1934. Tbe sheriff made bis return on 17 April following. On 18 June, 1934, an alias summons was ordered to issue against tbe defendant.\nThereafter, on 18 July, 1934, tbe defendant entered a special appearance and moved \u201cto dissolve and dismiss warrant of attachment\u201d for want of proper service or for want of jurisdiction.\nNearly four years later, to wit, on 23 June, 1938, tbe plaintiff filed a motion to dismiss tbe defendant\u2019s motion made upon special appearance and for judgment by default.\nThese two motions were beard together on 20 July, 1938, and resulted in judgment by tbe clerk denying tbe defendant\u2019s motion and allowing tbe plaintiff\u2019s motion. On appeal to tbe Superior Court, the judgment of tbe clerk was sustained and tbe appeal of tbe defendant dismissed.\nFrom this ruling tbe defendant appeals, assigning error.\nU. L. Spence for plaintiff, appellee.\nHoyle & Edwards for defendant, appellant." }, "file_name": "0669-01", "first_page_order": 735, "last_page_order": 736 }