Angle v. Black ( 1968 )

Morris, J.

The appellant failed to file a brief within the time provided in Rule 28 and appellee moved to dismiss under Rule 28. Appellant answered the motion asserting that he was not aware of the time requirement of the rules for the filing of briefs and tendered his brief. Since we are not inadvertent to the possibility that all members of the bar may not have familiarized themselves with the rules, despite their opportunity to do so, we accepted plaintiffs’ brief and heard oral arguments.

Plaintiffs contend that they were given no specific notice by administrator, additional defendant, of his intention to have heard the plea in bar, and this is their only contention. It appears that the partitioning proceedings was placed upon the motion docket of the court for hearing on September 25, the first day of a two-week term and was continued, at plaintiffs’ request, until the last day of the term, October 6, to give plaintiffs time for additional preparation. The answer of the administrator, the additional defendant, was filed March 6, 1967 setting up the plea in bar and asking dismissal of the proceedings. The matter was pending in court and had been for some six months. The term at which it was heard was a regular term. Parties are fixed with notice of all motions or orders made during the term of court in causes pending therein, and the statutory provisions for notice of motions are not applicable in such instances. Jones v. Jones, 173 N.C. 279, 91 S.E. 960 (1917); Harris v. Board of Education, 217 N.C. 281, 7 S.E. 2d 538 (1940).

Plaintiffs’ assignment of error is without merit.

The judgment of the superior court allowing the plea in bar and dismissing the proceedings is •

Affirmed.

Campbell and Parker, JJ., concur.