NEW HANOVER COUNTY and C. R. MORSE, City-County Tax Collector, v. KIRBY C. SIDBURY.
(Filed 12 December, 1945.)
1. Parties §§ 1, 2: Attorney and Client § 1—
A party may appear either in person or by counsel. G. S., 1-11. The statutory provision is in the alternative. It means that a litigant may not appear both in propria, persona and by counsel at one and the same time. It cannot be construed to mean that he may not first appear in person and then later through counsel.
2. Appearance §§ 1, 2a: Pleadings § 13% —
A purported special appearance, raising questions as to the merits involved in the action, does not challenge the jurisdiction of the court. Nor may it be treated as a demurrer. It is not a valid plea.
3. Same—
Having overruled an invalid special appearance, without finding that it was irrelevant and frivolous and made in bad faith for the purpose of delay, G. S., 1-126, leave to answer should be granted, G. S., 1-125.
4. Taxation § 34: Mortgages § 37—
In an action by a county to recover money received by defendant for its use, the complaint alleging that defendant, as mortgagee, foreclosed a mortgage and failed, out of the proceeds of sale, first to pay plaintiff’s claim or lien for taxes as provided by G. S., 105-408, a cause of action is stated, and demurrer ore tenus for lack thereof, interposed in this Court, cannot be sustained.
5. Same: Taxation § 40b—
An alternative remedy is created by G. S., 105-408, in behalf of the taxing agency. On foreclosure of a deed of trust or mortgage it may look to the trustee or mortgagee for the payment of taxes required by the statute, or it may waive that remedy and resort to a foreclosure of the tax lien.
Appeal by defendant from Williams, J., at August Term, 1945, of New HaNOvee.
Civil action to recover money received by defendant to use of plaintiff.
On or about 1 May, 1928, defendant mortgagee foreclosed mortgage on tbe lands of Southern Eealty and Development Company. He did not, out of tbe proceeds of sale, first pay plaintiff’s claim or lien for taxes as provided by G. S., 105-408. On 16 September, 1944, plaintiff instituted tbis action to recover taxes levied against said property and unpaid at tbe time of sale. After complaint was filed, defendant, in pro-pria persona, filed special appearance and motion to dismiss.
*680At the August Term, 1945, while the motion to dismiss was pending, plaintiff in open court moved for judgment by default final. W. L. Farmer, Esq., a practicing attorney of the New Hanover Bar, then counsel for defendant, attempted to speak for and represent defendant in opposing the motion. The court thereupon found the facts, including the following:
“And it further appearing and the Court finding that the defendant attempted to and did file what he termed a special appearance, in person, in which he raised question as to merits involved in the action, which the Court holds was in fact no special appearance, nor could it be construed as such, and that no answer having been filed by the defendant, nor was the defendant present in Court when the case was called for trial; that an attorney attempted to appear for the defendant, who, upon objection being raised by the plaintiff, the Court held that the defendant could not appear in person and by attorney, and that said attorney would not be permitted to represent the defendant . . .”
It then entered judgment by default final. Thereafter defendant served notice of appeal.
G. C. Mclntire for plaintiffs, appellees.
Clayton C. Holmes for defendant, appellant.
Barnhill, J.
The defendant excepts to (1) the refusal of the court below to permit his counsel to appear for him at the hearing on the motion for judgment by default final and (2) the signing of judgment without granting defendant an opportunity to file answer. The exceptions must be sustained.
A party may appear either in person or by counsel. G. S., 1-11. The statutory provision is in the alternative. It simply means that a litigant may not appear both in propria persona and by counsel at one and the same time. It cannot be construed to mean that he may not first appear in person and then later through counsel. Abernethy v. Burns, 206 N. C., 370, 173 S. E., 899; McClamroch v. Ice Co., 217 N. C., 106, 6 S. E. (2d), 850.
Oftentimes, particularly in inferior courts, a litigant undertakes to conduct his case without benefit of expert advice. He soon finds himself enmeshed in the intricacies of the law and realizes he cannot proceed intelligently and effectively without the aid of counsel. He employs an attorney who thereafter makes the necessary appearances in his behalf. In such cases both the original appearance in person and the subsequent appearances by counsel are permissible and entirely proper under our system. Having elected to employ counsel at any stage of the proceedings *681be may not be deprived of bis services for tbe reason be bas theretofore appeared in person. It is error for tbe court to undertake so to do.
Tbe purported special appearance does not challenge tbe jurisdiction of tbe court. Nor may it be treated as a demurrer. Hence the court properly concluded it was not a valid plea. Having overruled it, however, without finding that it was irrelevant and frivolous and made in bad faith for tbe purpose of delay, G. S., 1-126, leave to answer should have been granted. G. S., 1-125; Boone v. Hardie, 83 N. C., 471; Banle v. Derby, 215 N. C., 669, 2 S. E. (2d), 875.
Tbe demurrer ore ienus for that tbe complaint does not state a cause of action, interposed in this Court, cannot be sustained.
G. S., 105-408, provides that “whenever any real estate shall be sold by any person under any power of sale conferred upon him by any . . . mortgage, deed of trust, or assignment for tbe benefit of creditors, tbe person making such sale must pay out of tbe proceeds of sale all taxes then assessed upon such real estate. . . . Tbe failure to comply with this section and pay such taxes or assessments shall not vacate or affect tbe lien of such taxes or assessments, but such lien shall be discharged only to tbe extent payment is actually made.” Thus it creates an alternative remedy in behalf of tbe taxing agency. It may look to tbe trustee or mortgagee for tbe payment required by tbe statute or it may waive that remedy and resort to a foreclosure of tbe tax lien.
While it was suggested here in tbe argument that tbe plaintiff bas already elected to foreclose this lien, and tbe motion filed by defendant so indicates, it does not so appear on tbe face of the complaint. That defense, as well as tbe bar of tbe statute of limitations, if relied on by tbe defendant, must be asserted by way of answer.
Tbe judgment entered is vacated and tbe cause is remanded for further proceedings in accord with ibis opinion.
Error and remanded.