Thompson v. Thompson , 21 N.C. App. 215 ( 1974 )

203 S.E.2d 663 (1974) 21 N.C. App. 215

Vivian Lamb THOMPSON
v.
Freddie W. THOMPSON.

No. 7410DC113.

Court of Appeals of North Carolina.

April 3, 1974.

George M. Anderson, Raleigh, for plaintiff appellee.

Carl E. Gaddy, Jr., Raleigh, for defendant appellant.

MORRIS, Judge.

Defendant's contention is that the orders of Judge Barnette should be vacated inasmuch as the court did not have jurisdiction. The notice of appeal was filed by defendant on 24 August 1973, so it is sufficient to present for review the order of 14 August 1973. We do not determine the sufficiency of the notice of appeal with regard to the orders of Judge Barnette prior to that of 14 August 1973. We will, however, review the prior orders irrespective of the timeliness of appeal notice since the appeal is based on a question of jurisdiction.

The parties have stipulated that defendant was in fact served with the original process on 14 August 1971. Thus, it remains only for us to determine whether the docketing of an action constitutes notice to a litigant who has been served with the original process.

A party to a legal action, having been duly served with process, is bound to keep himself advised as to the time and date his cause is calendared for trial or hearing; and when a case is listed on the court calendar, he has notice of the time and date of the hearing. Craver v. Spaugh, 226 N.C. 450, 38 S.E.2d 525 (1946); Cahoon v. Brinkley, 176 N.C. 5, 96 S.E. 650 (1918), where the Court said:

"Even when he has employed counsel, he cannot abandon all attention to the case (citation omitted). And in this case the defendant well knew he had no counsel.

It has also been held that one who has been made party to an action by summons is fixed with notice of all orders and proceedings taken in open court. Le Due v. Slocomb, 124 N.C. 347, 32 S.E. 726." Id., at 8, 96 S.E. at 651.

The record shows that defendant was served with process at the inception of the action. The record shows as well that the case was properly calendared for hearing. We note that it is now, and has long been, the practice in Wake County that when a party to an action does not have counsel, a copy of each calendar on which his action appears calendared for trial is mailed to him at the last address available to the Clerk. We have no reason to believe that this customary and quite appropriate practice was not followed in this case. Indeed, it appears from plaintiff's affidavits that defendant was aware of orders entered and stated his intention not to comply with them. Defendant will not be permitted to frustrate the trial of the case or avoid the duties imposed by orders entered by merely declining or refusing to attend trial. He has been afforded proper legal notice of the orders of the District Court which he now seeks to have declared null and void.

The cause is remanded for hearing on plaintiff's motion that defendant be adjudged in contempt, which hearing was continued by Judge Winborne pending determination of defendant's appeal.

Remanded for hearing.

BROCK, C. J., and CARSON, J., concur.