Brittain v. Blankenship

94 S.E.2d 489 (1956) 244 N.C. 518

Ralph G. BRITTAIN
v.
Sulcer Spratt BLANKENSHIP.

No. 169.

Supreme Court of North Carolina.

September 26, 1956.

J. L. Hamme, Gastonia, for defendant appellant.

No counsel contra.

WINBORNE, Chief Justice.

A careful reading of the record and case on appeal as challenged by exceptions brought up for consideration on this appeal leads to the conclusion that, in the trial below, substantial justice has been done. And while there may be technical error in some respects, it is not of sufficient import to require a new trial

In connection with the exception to denial of defendant's so-called "plea to jurisdiction", entered as hereinabove related, the statute G.S. § 1-103 provides specifically that a voluntary appearance of a defendant is equivalent to personal service of the summons upon him. And decisions of this Court hold that a general appearance waives all defects and irregularities, and is sufficient even if there has been shown no service of the summons at all. See Dellinger v. Bollinger, 242 N.C. 696, 89 S.E.2d 592; Hamlet Hospital & Training School for Nurses v. Joint Committee on Standardization, 234 N.C. 673, 68 S.E.2d 862; In re Blalock, 233 N.C. 493, 64 S.E.2d 848, 25 A.L.R. 2d 818; Wilson v. Thaggard, 225 N.C. 348, 34 S.E.2d 140; Moseley v. Deans, 222 N.C. 731, 24 S.E.2d 630; Williams v. Cooper, 222 N.C. 589, 24 S.E.2d 484; Town of Asheboro v. Miller, 220 N.C. 298, 17 S.E.2d 105; Vestal v. Moseley Vending Machine Exchange Co., 219 N.C. 468, 14 S.E.2d 427; Four County Agricultural Credit Corp. v. Satterfield, 218 N.C. 298, 10 S.E.2d 914; Clement v. Clement, 216 N.C. 240, 4 S.E.2d 434; Shaffer v. Bank, 201 N.C. 415, 160 S.E. 481, and many more, cited under G.S.§ 1-103.

The trial judge ruled in accordance with these decisions. And in so doing it appears in the case on appeal that the Judge stated to counsel for defendant, "You cannot come into court with one hand and with the other say you are not in court." Defendant excepted thereto and contends that he is prejudiced thereby before the jury. In this connection reference to the pleading shows that defendant in his further answer and defense undertook to set up a cause of action on the theory that while he was operating his automobile in a lawful and reasonably prudent manner plaintiff's automobile was being negligently operated in manner stated as proximate result of which defendant's automobile was damaged in stated amount. Thus it is apparent that this fact prompted the statement of the Judge.

Be that as it may, if the Judge erred in making the statement, it is clear from the record, details of which need not be recited, that it is invited error of which defendant cannot complain. In re Mc-Gowan's Will, 235 N.C. 404, 70 S.E.2d 189, and cases cited.

Other assignments of error brought forward in brief of appellant require no specific treatment. They are without substantial merit.

For reasons stated, there is in the judgment from which appeal is taken

No error.