Beard v. Sovereign Lodge, W.O.W.

• Decision Date: 04 October 1922
• Docket Number: 169.
• Citation: 113 S.E. 661,184 N.C. 154
• Parties: BEARD v. SOVEREIGN LODGE W. O. W. ET AL.
• Court: North Carolina Supreme Court

113 S.E. 661

184 N.C. 154

BEARD v. SOVEREIGN LODGE W. O. W. ET AL.

No. 169.

Supreme Court of North Carolina

October 4, 1922

Appeal from Superior Court, Craven County; Daniels, Judge.

Action by E. C. Beard, Jr., against the Sovereign Lodge Woodmen of the World and others. From an order that the service was sufficient, and an order setting aside a default judgment entered by the clerk, because the complaint was insufficient to authorize it, both parties appeal. Appeals dismissed.

The plaintiff brought suit to recover of the Sovereign Lodge $2,000 alleged to be due him on a beneficiary certificate. He alleged that the defendant was a corporation conducted as a secret benevolent and beneficiary fraternity, and that Sycamore Lodge, as agent of the defendant, issued to E. C Beard, Sr., the certificate sued on, in which the plaintiff was named as beneficiary; that he was informed and believed the insured died on or about December 6, 1908; that at the time of his death the insured was a member of the defendant corporation in good standing, having paid all his dues; that the plaintiff had demanded of the defendant the amount alleged to be due on said certificate; and that the defendant had refused to make payment. On July 29, 1921, the clerk of the superior court of Craven county rendered judgment by default final against the defendant for $2,000, with interest from December 6, 1908, having found as a fact that the time allowed by statute for filing an answer had elapsed. On April 20, 1922, after notice to the plaintiff, the Sovereign Camp of the Woodmen of the World entered a special appearance before the clerk and moved to set aside the judgment for want of service, as set forth in its affidavits and written motion, and on April 22 the clerk vacated and set aside said judgment so far as it affected said Sovereign Camp. From this judgment the parties appealed to the judge, and on June 4 his honor adjudged the service of summons to be sufficient in law, and the judgment by default final to be unauthorized upon the face of the complaint. His honor set aside the judgment and retained the cause for trial. Both parties appealed.

Shaw & Jones, of Kinston, for plaintiff.

Cowper Whitaker & Allen, of Kinston, for defendant.

Plaintiff's Appeal.

ADAMS J.

The plaintiff prosecutes this action to recover $2,000 alleged to be due by virtue of a certificate of insurance issued by the defendant for the benefit of the plaintiff on the life of his father. The defendant contends that the plaintiff has failed to furnish proof of the death of the insured, and to set out in the complaint a sufficient averment of compliance with the contract to justify a judgment by default final.

At common law a judgment by default, which was taken to be an implied confession of the cause of action, was rendered either where the defendant's attorney, having appeared was not informed of an answer to be interposed to the action or where the defendant himself appeared, but said nothing in bar of recovery, and the defendant, in theory, at least, said nothing where there was no defense, either on the pleadings, the law, or the merits. 1 Tidd's Pr. 562; 2 Tidd's Pr. 930; 3 Chitty's Pr. 672. In modern practice a judgment by default is one taken against the defendant, who, having been duly summoned, fails to enter an appearance.

Our statute provides that judgment by default final may be had on the defendant's failure to answer, when the complaint sets forth one or more causes of action, each consisting of the breach of an express or implied contract to pay, absolutely or upon a contingency, a sum or sums of money fixed by the terms of the contract, or capable of being ascertained therefrom by computation. C. S. § 595. In an action ex contractu it is essential that the declaration or complaint set forth, not only the contract upon which the action is founded, but the alleged breach of it, so that the court may determine whether the action as stated can be maintained; for a default admits only the averments in the complaint, and the defendant may show that such averments are insufficient to warrant the plaintiff's recovery. 1 Tidd's Pr. 434; 3 Estee's Pleadings, Boone, § 4785; 1 Black on Judgments, § 84.

It is not denied in the instant case that the complaint contains a statement of an express contract, but it is urged, against the plaintiff's asserted right to judgment by default final, that there is no sufficient allegation that the plaintiff has observed, or that the defendant has failed to observe, the provisions of the policy. This contention presents the question with which we are immediately concerned.

The plaintiff alleges that on December 6, 1908, the insured left his home in Jones county, and set out on a journey to Chesterfield, Md., from which he never returned; that search inquiry, and investigation, continuously prosecuted since that time by the plaintiff, his mother, and the intelligence department of the defendant, have neither revealed his whereabouts nor explained his absence; that the...