Bailey v. Davis

• Decision Date: 09 November 1949
• Docket Number: 384
• Citation: 55 S.E.2d 919,231 N.C. 86
• Parties: BAILEY et al. v. DAVIS.
• Court: North Carolina Supreme Court

55 S.E.2d 919

231 N.C. 86

BAILEY et al. v. DAVIS.

No. 384

Supreme Court of North Carolina

November 9, 1949

Civil action to recover on contract for an oil burning furnace etc., installed in office building of defendant.

On 21 January, 1949, the Clerk of Superior Court of Lenoir County, upon motion of attorney for plaintiff, entered judgment by default final against defendant upon these findings of fact: That summons issued in this action on 18 December, 1948, and plaintiffs filed duly verified complaint on same date; that the summons, together with a copy of the complaint so filed, was duly, regularly and personally served upon defendant on 18 December, 1948, by the Sheriff of Lenoir County, acting through his duly authorized deputy sheriff by delivering to her a copy of the summons and a copy of the said complaint; that defendant filed no answer within the time allowed by law, and made no appearance of any kind either in person or by attorney, and no extension of time in which to plead was either requested by defendant or granted to her within the time provided by law in which to answer the plaintiffs' complaint; that more than thirty days have elapsed since the said service of summons and complaint, and the time for answering said complaint expired on 17 January 1949; that the complaint sets forth a cause of action for breach of an express contract to pay a sum of money fixed by the terms of the contract or capable of being ascertained therefrom by computation--an itemized statement of the amount claimed by plaintiffs being attached to and forming a part of the complaint and served with the summons and complaint etc.

Defendant moved, on 22 January, 1949, to set aside the foregoing judgment for that defendant duly filed answer as appears of record on 19 January, 1949, before judgment was rendered, and said answer has not been set aside and no motion made, or notice given of motion to be made before said clerk of Superior Court to set aside the answer, and defendant further moved that the answer filed on 19 January, 1949, be allowed as filed on said date on grounds set out in affidavit and written motion. The answer appears in the record and purports to deny the indebtedness alleged in the complaint, and to set up a counterclaim.

Plaintiffs filed answer to the motion and affidavit of defendant, in which among other things plaintiffs say: (1) 'It is further admitted that the defendant's attorney prepared and filed a paper writing purporting to be an answer on the 19th day of January, 1949, * * *'; (2) 'That on the 19th day of January, 1949, and without notice to plaintiffs' counsel * * * counsel for defendant filed a paper writing purporting to be an answer; that plaintiffs' counsel received a copy of the paper writing * * on January 20, 1949, and in the same mail received a letter from the plaintiffs instructing him to move for judgment, whereupon the plaintiffs, through counsel, moved for judgment by default on January 21, 1949, which judgment was signed and entered by the clerk of the Superior Court of Lenoir County'; and thereupon plaintiffs pray (1) that the motion of defendant to set aside the judgment so entered be denied; (2) that the paper writing filed by defendant on 19 January, 1949, purporting to be an answer to plaintiffs' complaint, be stricken and withdrawn from the court papers; and (3) that defendant's motion be dismissed at her cost.

The motion to set aside the judgment was disallowed, and defendant appealed to the Superior Court.

When the appeal came on for hearing in Superior Court the presiding judge, being of opinion that the ruling to be made upon defendant's motion is entirely within the sound discretion of the court, and that the plaintiffs' request to find the facts should be denied, and defendant's motion should be allowed, entered an order, in the discretion of the court, that the judgment by default final rendered by the clerk of Superior Court of Lenoir County on 21 January, 1949, in this cause be and the same is thereby vacated and set aside; and 'that the paper writing filed by the defendant on 19 January, 1949, be and it is hereby allowed and filed as the defendant's answer, with leave to the plaintiffs to plead thereto as provided by law'.

Plaintiffs appeal therefrom to Supreme Court, and assign error.

Thos. J. White, Kinston, for plaintiffs-appellants.

Whitaker & Jeffress, Kinston, for defendant-appellee.

WINBORNE Justice.

Appellants contend that the judge below erred in not treating the motion of defendant as a motion to set aside the judgment by default for excusable neglect, pursuant to provisions of G.S. s 1-220, and in not finding facts in accordance therewith. It may be conceded that if the judgment in question had been taken according to the course and practice of the court, the judge, under this statute, should find the facts of excusable neglect and meritorious defense. However, in the light of pertinent statutes in this State and pertinent decisions of this Court, the judgment here was entered without authority in that judgment by default may be entered only when defendant has not answered. G.S. s 1-211 and G.S. s 1-214. Hence the provisions...