Hockoday v. . Lawrence
Supreme Court of North Carolina
PetitioN to rebear on appeal from Lyon, J., at November Term, 1911, of Geanville. Tbis case was decided at tbe last term, and is now before tbe Court upon a petition to rebear.
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PetitioN to rebear on appeal from Lyon, J., at November Term, 1911, of Geanville. Tbis case was decided at tbe last term, and is now before tbe Court upon a petition to rebear. Tbe following facts appear in tbe record: In February, 1907, W. N. Fuller filed an application before tbe Clerk of tbe Superior Court of Granville County for tbe appointment of a next friend for dames M. Hockoday, wbo bad been found by a jury to be non compos mentis, and on tbe same day H. C. Hockoday was appointed sucb next friend, and instituted tbis action for tbe purpose of setting aside certain deeds executed by…
1Opinion of the CourtAlleN, J.
Tbe executor insists tbat be raised an issue of fact in bis answer by alleging “tbat be is of opinion tbat tbis action is not for tbe best interest of tbe estate of James M. Hockoday, and should not be prosecuted further, but should be dismissed at tbe cost of plaintiff and tbe surety on bis prosecution bond,” and tbat as be has not waived tbe right in tbe mode prescribed by statute, be is entitled to have tbis issue passed on by a jury.
It is true, as contended by tbe defendant, tbat Revisal, sec. 540, prescribes only three ways in which a trial by jury may be waived: (1) By failing to appear…
2Cases cited5 opinions
- Tate v. . MottSupreme Court of North Carolina · 1887
- Smith v. . KingSupreme Court of North Carolina · 1890
- Hahn v. Brinson.Supreme Court of North Carolina · 1903
- State on Rel. Martin v. . Sloan .Supreme Court of North Carolina · 1873
- Smith v. SmithSupreme Court of North Carolina · 1891
3Cited by9 opinions
- Rabil v. . FarrisSupreme Court of North Carolina · 1938
- Rabil v. FarrisSupreme Court of North Carolina · 1938
- Crews v. . CrewsSupreme Court of North Carolina · 1918
- Ward v. TaylorCourt of Appeals of North Carolina · 1984
- Krachanake v. . Manufacturing Co.Supreme Court of North Carolina · 1918
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