Gilchrist v. . Kitchen
Supreme Court of North Carolina
Civil Action to recover land tried at Fall Term, 1881, of Robeson Superior Court, before Graves, J. The summons in the case was returned to spring term, 1881, and the complaint was not filed until the fourth day of the term. No answer was filed by the defendant.
Read the full summary
Civil Action to recover land tried at Fall Term, 1881, of Robeson Superior Court, before Graves, J. The summons in the case was returned to spring term, 1881, and the complaint was not filed until the fourth day of the term. No answer was filed by the defendant. At the following fall term, the defendant having still failed to file an answer, the plaintiff moved for judgment for want of an answer, and at the same time the defendant moved to dismiss the action for'the reason the complaint had not been filed within the first three days of the return term. His Honor overruled the defendant’s…
1Opinion of the CourtAshe, J.
It has been well settled in this state that no appeal lies to this court from the exercise of a discretionary power of the superior court. But if the exercise of a discretion by that court is refused upon the ground that it has no power to grant a motion addressed to its discretion, the ruling of that court is reviewable.
In Hudgins v. White, 65 N. C., 393, it is held, “if a judge refuses to entertain a motion to set aside a judgment for any of the causes mentioned in section 133 of the Code, because he thinks he has no power to grant it, he fails to exercise the discretion confided to him by…
2Cases cited3 opinions
- Austin v. . ClarkeSupreme Court of North Carolina · 1874
- Hudgins v. . WhiteSupreme Court of North Carolina · 1871
- State v. . Locust and PearsonSupreme Court of North Carolina · 1869
3Cited by32 opinions
- Calloway v. Ford Motor CompanySupreme Court of North Carolina · 1972
- State Highway Commission v. HemphillSupreme Court of North Carolina · 1967
- State v. . CaseySupreme Court of North Carolina · 1931
- State v. CaseySupreme Court of North Carolina · 1931
- Johnson v. JohnsonCourt of Appeals of North Carolina · 1972
27 more not listed; retrieve them via the Exa API.