Bowie v. . Tucker

Adams, J. The clerk gave judgment by default and inquiry and the defendants made a motion before him to set aside the judgment on the ground of surprise and excusable neglect. The motion was denied, and upon appeal the clerk’s judgment -was reversed. C. S., 600. An applicant for relief under this section must show a meritorious defense, as well as excusable neglect. Dunn v. Jones, 195 N. C., 354; Crye v. Stoltz, 193 N. C., 802; Helderman v. Mills Co., 192 N. C., 626. Conceding that there is sufficient evidence of excusable neglect to support the finding to this effect, we have discovered no evidence whatever, and of course there is no finding, of a meritorious defense. The defendants contend that this principle is not applicable because the complaint does not státe a cause of action. We do not concur in this conclusion. The allegations are that the brick wall is entirely on the property of the plaintiff; that between his property and that of the defendants there is an alley which has been dedicated to the public use; that it has been closed by the defendants; and in effect that the defendants have trespassed on the plaintiff’s property by connecting their fences with his wall. In Milliken v. Denny, 135 N. C., 19, cited and relied on by the defendants, it was said, “We find no suggestion in the complaint that the alleged alley was dedicated to any public use”; and the absence of an allegation of dedication marks the difference between the complaint in that case and the one in the case before us. Where there is a dedication and acceptance of property to the use of the public the right of user at once arises and time is no longer material. Tise v. Whitaker, 146 N. C., 374. This is the substance of the amended complaint, which the plaintiff is entitled to establish by competent evidence, unless the defendants disconnect their fence from the plaintiff’s wall and reopen the alley, the plaintiff alternately asking either this relief or damages for the alleged wrong. *673 Tbe defendants finally advert to the principle that an unappealed judgment sustaining a demurrer to the merits.of an action estops the plaintiff from further proceedings. If nothing more than a judgment sustaining the demurrer appeared in the present record the position would merit serious consideration. Bank v. Dew, 175 N. C., 79; Swain v. Goodman, 183 N. C., 531. But Judge Clement, during a regular term of the Superior Court, made an order in the exercise of bis discretion granting the parties time in which to file additional pleadings. Pursuant to this order the plaintiff filed bis amended complaint. Tbe order sustaining the demurrer to the former complaint could not therefore work an estoppel upon the plaintiff to proceed on the amended pleading. That the judge bad the power to make the order is unquestionable. Goins v. Sargent, 196 N. C., 478; Hines v. Lucas, 195 N. C., 376; Aldridge v. Insurance Co., 194 N. C., 683. Indeed, permission to file amended pleadings after a demurrer is sustained, if the judge thinks the ends of justice will be thereby promoted, is suggested as the proper practice in Milliken v. Denny, supra. Tbe order setting aside the judgment by default and.inquiry is Reversed.