Deutsch v. Fisher , 39 N.C. App. 304 ( 1979 )

MORRIS, Chief Judge.

This procedural quagmire can be aptly likened to the fabled Serbonian bog. Step by step extrication is difficult, if not virtually impossible. We shall, therefore, discuss the questions raised by appellant in the order discussed in her brief.

It is appellant’s position, by her first assignment of error, that this Court, in its previous opinion, in effect granted not only the motion to vacate and set aside the judgment of 10 March 1975, but, in addition, held that the action should be dismissed “because of the failure to comply with the Rules of Civil Procedure as well as the long delay in prosecuting the action”. We do not so interpret the opinion. Appellant relies on the following paragraph from that opinion:

“In the case at bar, we note that substitution was attempted on May 8, 1973, more than four years after the death of the original parties. However, the record fails to reveal any findings by the trial judge as to whether this or any other factor was ever considered in determining whether the supplemental pleading was ‘just’.”

This statement was, of course, referring to an assumption for the purpose of argument only that the attempt to substitute parties was by supplemental pleading. However, at the August hearing defendant, Elsie Fisher, administratrix, offered evidence tending to show that counsel for her husband, the original defendant, died in March of 1970 (having withdrawn from the lawsuit in July, 1967); that the file in his office contained only a copy of the complaint, a copy of the answer, and some letters from counsel to original defendant with respect to the possibilities of settlement; that counsel’s partner knew nothing about the lawsuit and particularly had no knowledge with respect to the affirmative defenses; that Elsie Fisher was not familiar with the affirmative defenses; that Elsie Fisher had only one conversation with counsel and that was when he asked her to sign a deed advising that he could get her more money; that she refused; that he never asked her about her husband’s mental capacity.

The court found that none of the parties had lost any “defenses or counterclaims” which he or she might have had; that both Deutsch, administrator, and Fisher, administratrix, had reasonable notice of the hearing; and that to allow movant to file a supplemental pleading “would be just in this cause of action”.

We note that in the order of 12 August 1977, the court recited that James C. Coleman, attorney for Elsie Fisher, ad-ministratrix, orally moved that the court hold a hearing for the purpose of determining whether either Deutsch or Fisher should be permitted to serve supplemental pleadings, and the court set 24 August 1977 as the time for hearing that motion. At the hearing, Deutsch filed a written motion. The court, in its order, noted that both were proper parties to make the motion, that reasonable notice was given, and it “would be just to allow said parties to file a supplemental complaint”. We note also that by written motion dated 19 March 1976, Elsie Fisher requested that Deutsch, administrator, and Fisher, administratrix, be made parties to the action.

We cannot discern how appellant can, in good conscience claim that she had no notice that the motion to allow supplemental pleadings would be heard.

Nor can we agree that this Court indicated that the action should be dismissed for failure to prosecute. It is true that a long period of time has elapsed since the action was instituted. However, there has been much activity in the case since early in 1973, slightly more than two years after the death of the original defendant. It is also to be noted that the original plaintiff died in 1968, the first administratrix of his estate died, and successors were appointed. There is no evidence that defendant has lost any defenses. It would seem that she, better than anyone else, would be cognizant of her husband’s mental capacity and would know those who could testify with respect thereto. In any event, we find nothing in the record before us which would indicate that the present plaintiff should not be allowed to prosecute the action. It may well be that a lapse of over seven years without some action taken by a plaintiff would require the application of the doctrine of laches. However, we are not willing to require its application in the very peculiar circumstances of this case. Appellant’s first assignment of error is overruled.

By her second assignment of error appellant contends that her motion for dismissal, under Rule 41(b), filed 19 March 1976 should have been allowed. The motion was based on laches. The parties have filed a stipulation that this motion was orally denied by the court at the 25 August 1977 hearing, but the denial was not included in the order. Prior discussion is applicable, and this assignment of error is overruled.

Appellant next contends that her motion for abatement should have been granted. Again it is stipulated that the motion was denied by the court on 25 August 1977, but the denial was not included in the court’s order. The motion to abate was dated 19 March 1976, after the case had been tried and judgment rendered. Appellant relies on G.S. 1A-1, Rule 25(c).

“(c) Abatement ordered unless action continued.— At any time after the death, insanity or incompetency of a party, the court in which an action is pending, upon notice to such person as it directs and upon motion of any party aggrieved, may order that the action be abated, unless it is continued by the proper parties, within a time to be fixed by the court, not less than six nor more than 12 months from the granting of the order.”

It is obvious this section is not applicable to this situation.

Appellant also urges that her motion, included in the above referred to motion, that “the parties plaintiff and alleged parties plaintiff and heirs at law of Jerry E. Beddingfield be forever enjoined from prosecuting this lawsuit” should have been allowed. This is also a subject of the stipulation that the court failed to include in its order the denial of this motion. Appellant again argues laches and further says: “Injunctive relief has long been available in North Carolina to enjoin civil actions instituted repeatedly on the same cause of action against the same defendants and, that is exactly the situation we have in this case. Robert Deutsch as Ancillary Administrator has constantly been initiating new actions on the same case (sic) of action since 1973 and, if injunctive relief is not granted, he will no doubt institute additional actions on the same cause of action.” Assuming appellant’s correctness as to the law stated, this record is completely barren of any indication of any kind that the present plaintiff has instituted any action other than the one before us or that he will do so. This assignment of error is without merit and overruled.

By her fifth assignment of error appellant challenges the order of the court allowing Robert Deutsch, as ancillary administrator, to file a supplemental complaint. Here the appellant again argues notice and whether it would be just to allow ap-pellee to file a supplemental complaint. We have previously discussed both these questions. It is not necessary to do so again. Suffice it to say, the assignment of error is overruled.

The sixth assignment of error is directed to the court’s action in making Robert Deutsch, ancillary administrator, Elsie Fisher, individually, and Elsie Fisher, administratrix, parties to the action. The same reasons are advanced and have been answered. Additionally, appellant takes the position that since Elsie Fisher, individually, was not an original party, she should not now be made a party, particularly in view of the fact that there is no allegation that she signed a contract to convey the land. We simply point out that in the case reported in 32 N.C. App. 688, 233 S.E. 2d 646 (1977), and in the statement of facts presented by appellant, it is said that Elsie Fisher is the “widow and sole heir at law” of the original defendant. This assignment is overruled.

No new or additional argument is presented by the remaining two assignments of error, and the questions raised have been answered previously in this opinion. These assignments of error are also overruled.

We have not called to the attention of counsel for the parties all of the many procedural deficiencies existing, because, in our view, the trial court has reached the right result. To set out in seriatim the deficiencies and remand the case for their correction would be an exercise in futility and would only result in additional expense to the litigants. The law is not required to be that impractical.

Affirmed.

Judges HEDRICK and Martin (Harry C.) concur.