Cooper v. . Warlick
Supreme Court of North Carolina
Special proceeding- for partition, begun before the Clerk of the Superior Court of Cherokee County, and heard upon appeal before Brown, J., at Chambers. On the said 12th day of February, 1891, the return day of the summons, the defendants Warlick appeared by Mr. Ben.
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Special proceeding- for partition, begun before the Clerk of the Superior Court of Cherokee County, and heard upon appeal before Brown, J., at Chambers. On the said 12th day of February, 1891, the return day of the summons, the defendants Warlick appeared by Mr. Ben. Posey, their attorney, and filed answer to the plaintiff’s petition claiming to be sole seized and possessed of the land and premises described in the petition, but failed to file the undertaking required by the statute, or to otherwise comply with the provisions of the statute so as to entitle them to answer. On the 30th day of…
1Opinion of the Court
Clark, J.:
The defendants having pleaded sole seizin could have been required to file a defence bond under section 237 of The Code; Vaughan v. Vincent, 88 N. C., 116, unless they had obtained leave to defend the action without giving the bond. But his Honor properly held that “having accepted the answer and filed it on the day fixed for pleading, and no objection being made by the plaintiff,” it was error in the Cletk to strike out the answer, after it had been on file forty-two days, without notice to the defendants, and to give a summary judgment against them. The case comes within the…
2Cases cited4 opinions
- McMillan v. . BakerSupreme Court of North Carolina · 1885
- Vaughan v. . VincentSupreme Court of North Carolina · 1883
- Russell v. . SaundersSupreme Court of North Carolina · 1856
- Brittain v. . HowellSupreme Court of North Carolina · 1836
3Cited by11 opinions
- Becton v. Dunn.Supreme Court of North Carolina · 1905
- Huneycutt v. . BrooksSupreme Court of North Carolina · 1895
- Mintz v. . FrinkSupreme Court of North Carolina · 1940
- Rich v. NORFOLK SOUTHERN RAILWAY COMPANYSupreme Court of North Carolina · 1956
- Morris v. WilkinsSupreme Court of North Carolina · 1955
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