O'Briant v. H. C. Bennett & Gibson Ice Cream Co.

Clarkson, J. Facts: It is contended by plaintiff that this is an attempted appeal by defendants from an order entered by Williams, judge, allowing complaint to be filed by plaintiff. Plaintiff caused to be issued summons on 6 July, 1937, from Lee Superior Court to Guilford County, and the same was served on defendants. Complaint was not filed until 4 August, 1937. Copies were furnished defendants. On 13 August, 1937, defendants caused summons to issue against plaintiff from Guil-ford County and filed complaint and caused same to be served in Lee County for precisely the same cause of action but additional party— The Durham Herald, Inc. The first action had not been dismissed and has never been dismissed, but has at all times pended in Lee County Superior Court since 6 July, 1937. On 16 August, 1937, and after having instituted their action in Guilford County, defendants moved in Lee Superior Court to dismiss plaintiff’s action because complaint had not been filed within the time fixed by law. This motion was denied by the clerk and defendants appealed therefrom. By order of Judge Spears the whole matter was submitted to judge presiding in Lee Superior Court at November Term, 1937. The judge presiding at such term, in the exercise of his discretion, and so stated to be in his order, allowed plaintiff ten days to file the complaint. In the present action there is no dispute by defendants that the summons was issued in accordance with N. C. Code, 1935 (Michie), sec. 475. It was duly served on defendants. Section 488 is as follows: “From the time of service of the summons in a civil action, or the allowance of a provisional remedy, the court is deemed to have acquired jurisdiction and to have control of all subsequent proceedings.” Section 505 is as follows : “The first pleading on the part of the plaintiff is the complaint. It must be filed in the clerk’s office at or before the time of the issuance of summons, and a copy thereof delivered to the defendant, or defendants, at the time of the service of summons: *404 Provided, that the clerk may at the time of the issuance of summons on application of plaintiff by written order extend the time for filing complaint to a day certain not to exceed twenty (20) days, and a copy of such order shall be delivered to the defendant, or defendants, at the time of the service of summons in lieu of a copy of the complaint: Provided further, said application and order shall state the nature and purpose of the suit. The clerk shall not extend the time for filing complaint beyond the time specified in such order, except that when application is made to the court, under Art. 44, ch. 12, of the Consolidated Statutes, for leave to examine the defendant prior to filing complaint, and it shall be made to appear to the court that such examination of defendant is necessary to enable the plaintiff to file his complaint, and such examination is allowed, the clerk shall extend the time for filing-complaint until twenty (20) days after the report of the examination is filed as required by sec. 902 of the Consolidated Statutes. When the complaint is not filed at the time of the issuance of the summons, the plaintiff shall, when he files complaint, likewise file at least one copy thereof for the use of the defendant and his attorney. When there are more than one defendant the clerk may, by written notice to the plaintiff, require the filing of additional (not to exceed six) copies of the complaint within the time specified in such notice, not to exceed ten days. Such notice may be served by mailing to the plaintiff or his attorney of record.” On 6 July, when the summons was issued, the complaint was not filed at or before the time of the issuance of summons, but the plaintiffs made application before the clerk to extend the time in which to file complaint, stating the nature and purpose of the suit. The clerk in the summons stated: “You are commanded to summon Gibson Ice Cream Company and H. C. Bennett, the defendants above named, if they be found within your county, to appear before the clerk of the Superior Court for the county of Lee, at his office in the courthouse thirty (30) days after 5 August, 1937 (which is the day fixed for filing complaint under the order of court, a copy of which said order appears on the back of this summons and is served herewith), and answer the complaint, which will be filed in the office of the clerk of the Superior Court of said county on or before the said day fixed for filing complaint,” etc. The clerk made an order extending the filing of the complaint to 5 August, 1937. The return of the summons by the deputy sheriff of Guilford County shows: “Served 15 July, 1937, by delivering a copy of the within summons, a copy of the application for extension of time to file complaint, and a copy of the order extending the time for filing complaint, to each of the following defendants,” etc. *405 Tbe complaint of plaintiff was filed on 4 August, 1937. On 16 August, 1937, tbe defendants made a motion to dismiss tbe action “That tbe order hereinabove referred to as signed ‘W. G. Watson, clerk Superior Court Lee County,’ is void and of no legal effect. That complaint in tbis action was not filed herein until 4 August, 1937, more than twenty days after tbe issuance of tbe summons herein.” Tbe defendants further set forth tbe suit in Guilford County, brought by defendants against plaintiff and tbe Durham Herald, Inc., “That tbe action now pending in tbe Superior Court for Guilford County as above entitled was duly and regularly instituted, and was so duly and regularly instituted before any action in any other county, including tbe above entitled action, was duly and regularly instituted; that said action arises out of tbe same transaction and has tbe same and identical subject matter.” Tbe clerk denied tbe motion, “And tbe defendants are allowed thirty (30) days from tbe date hereof to answer or otherwise plead to tbe complaint. It is further ordered that tbe complaint of tbe plaintiff in tbis action is hereby ordered to be filed nunc pro tunc as of 24 July, 1937.” Tbe defendants appealed to tbe Superior Court from tbe order of tbe clerk. Tbe court below found that “Tbe extension of time for filing complaint for more than twenty days was through inadvertence.” Tbe court below, upon tbe findings of fact and in tbe exercise of its discretion, denied tbe motion of defendants to dismiss tbe action. N. C. Code, supra, sec. 536, is as follows: “Tbe judge may likewise, in bis discretion, and upon such terms as may be just, allow an answer or reply to be made, or other act to be done, after tbe time limited, or by an order to enlarge tbe time.” In Smith v. Ins. Co., 208 N. C., 99 (102), it is written: “In Hines v. Lucas, 195 N. C., 376 (377), is tbe following: ‘The judge has tbe power to extend tbe time for filing complaint and bis refusal to dismiss tbe action, under tbe facts presented, was at least equivalent to an order permitting tbe filing of complaint. Under tbe law as now written, when a cause is properly before tbe judge, be has power, in tbe exercise of a sound legal discretion, to extend tbe time for filing pleadings. C. S., 536; Aldridge v. Ins. Co., 194 N. C., 683. While it is true that tbe Aldridge case, supra, and tbe line of cases therein cited, refer more particularly to filing answer, no sound reason occurs to us why tbe same power does not exist for enlarging tbe time for filing complaint. C. S., 536.’ Bowie v. Tucker, 197 N. C., 671 (673); Washington v. Hodges, 200 N. C., 364 (370); N. C. Prac. & Proc. in Civil Cases (McIntosh), secs. 485, 513-14.” Tbe present action was pending when defendants brought the suit against plaintiff and Durham Herald, Inc., in Guilford County, involv *406 ing the same subject matter. The present action has priority, as it was then pending. C. S., 415. Morrison v. Lewis, 197 N. C., 79; Atkinson v. Greene, 197 N. C., 118 (120). The order extending time for filing complaint was perhaps irregular or defective, but not void ab initio. We see no substantial right of defendants involved. The suit instituted by them cannot be sustained as the present suit was pending. In Morrison v. Lewis, 197 N. C., 79 (81), we find: “In Alexander v. Norwood, 118 N. C., 381, 24 S. E., 119, it was said: 'Where an action is instituted and it appears to the court by plea, answer, or demurrer that there is another action pending between the same parties and substantially on the same subject matter, and that all the material questions and rights can be determined therein, such action will be dismissed.’ ” N. C. Code, supra, sec. 600, is as follows: “The judge shall, upon such terms as may be just, at any time within one year after notice thereof, relieve a party from a judgment, order, verdict, or other proceeding taken against him through his mistake, inadvertence, surprise, or excusable neglect, and may supply an omission in any proceeding. The clerk may hear and pass upon motions to set aside judgments rendered by him, whether for irregularity or under this section, and an appeal from his order on such motion shall lie to the judge at the next term, who shall hear and pass upon such motion de novo: Provided, however, nothing in this section shall be construed to affect.the rights of innocent purchasers for value in foreclosure proceedings where personal service is obtained.” (Italics ours.) In the Smith case, supra, it is said: “Ordinarily an appeal to this Court will be dismissed when taken from a discretionary order in the court below.” For the reasons given, the judgment of the court below is Affirmed.