Gill v. . Porter

This is a special proceeding, returnable before the clerk, and the pleadings were made up and filed before him. The defendant Mae H. Porter filed her answer on 14 January, 1917, pleading sole seizin. At the time of filing their answer, defendants failed to file a defense bond as required by law when sole seizin is pleaded in partition proceedings. Haddock v.Stocks, 167 N.C. 70.

No motion to strike out the answer for lack of bond and for judgment by default was made before the clerk. The clerk transferred the cause to the trial term docket, and the case was first called at March Term, 1917, when the judgment was rendered. No previous notice of the motion was given defendants.

The answer had been filed some seventy-four days prior to the motion in the Superior Court. No objection was made before the clerk to the filing of the answer and no demand made for a bond. This constituted a waiver of the bond to such an extent at least that defendants were entitled to notice of the motion and to a reasonable time within which to file the bond. The exact point is decided in McMillan v. Baker, 92 N.C. 110; Cooper v. Warlick, 109 N.C. 672; Becktonv. Dunn, 137 N.C. 559.

In the last case it is said: "Even when an answer has been filed without any bond, and has remained on file for some time without objection, it is held to be irregular to strike it out and give judgment without notice or rule to show cause, or without giving the defendant opportunity to file a defense bond."

The judge should have granted defendant's motion for time to file bond.

The judgment of the Superior Court is set aside and the cause remanded with instructions to allow defendants to file a justified bond, to be approved by the clerk, within twenty days after this opinion shall be received in the office of the clerk of the Superior Court.

Reversed.

Cited: Rich v. R. R., 244 N.C. 181; Motley v. Thompson, 259 N.C. 617.

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