Gillam v. Cherry

• Decision Date: 22 September 1926
• Docket Number: 87.
• Parties: GILLAM v. CHERRY et al.
• Court: North Carolina Supreme Court

134 S.E. 423

192 N.C. 195

GILLAM v. CHERRY et al.

No. 87.

Supreme Court of North Carolina

September 22, 1926

Appeal from Superior Court, Bertie County; Midyette, Judge.

Suit by J. B. Gillam against James S. Cherry and others. Judgment for plaintiff by default and inquiry, and he appeals. Error.

The material facts setting forth the controversy were found by the court below, and judgment rendered as follows:

"Summons issued in this action on September 17, 1925, and plaintiff filed his verified complaint in this court on that date. The summons were returnable on September 30, 1925. The summons and complaint were duly served upon the defendants James S. Cherry and Annie L. Cherry on September 19, 1925 by the sheriff of Bertie county; such service being made by the reading of the summons to the said defendants, and by leaving copies of said summons and said verified complaint with the said defendants. The sheriff made his return on the said summons, showing service of both complaint and summons on said defendants, and the clerk of the superior court of Bertie county entered such return upon the summons docket. The said defendants failed to file answer or other pleadings or defense bond, within 20 days after the service of said summons and complaint upon them. On October 12 1925, after 20 days from the service of summons and complaint upon said defendants, the plaintiff appeared before the clerk of the superior court and moved for judgment by default final against the said defendants upon the cause of action set out in the complaint. This motion was refused by the clerk of the superior court, who allowed the defendants until October 20, 1925, in which to file their answer; and the plaintiff appealed therefrom to the judge of the superior court. Afterwards, on October 29 1925, the defendants James S. Cherry and Annie L. Cherry served notice upon the plaintiff that they would move before this court for additional time for the filing of the answer to the complaint; such notice being given while such appeal was pending before this court. It further appears to the court that the plaintiff used all diligence in moving for such judgment and was not guilty of laches. It further appears that the plaintiff, J. B. Gillam, brought an action against the defendant James S. Cherry in the superior court of Bertie county, on March 16, 1922, such action being brought to recover the sum of $838.77 and interest thereon from the 5th day of March, 1921, such sum being due on contract, and that the plaintiff recovered judgment on said debt against the said Cherry at February term, 1925, of said court, such judgment being docketed in the office of the clerk of the superior court in Book of Jugments ___, p. ___; that at the commencement of such action the defendant James S. Cherry was the owner of the lands described in the complaint, but pending said action the said James S. Cherry, on the 8th day of February, 1923, without any consideration and with the intent and purpose of hindering, delaying, and defrauding the plaintiff out of the collection of his debt, and also with a like purpose to defraud other creditors, conveyed the said lands to his stepmother, Annie L. Cherry, with whom he then resided, and that the said Annie L. Cherry received and accepted said deed with full knowledge of such intent and purpose of said James S. Cherry, and at such time, and now, the said James S. Cherry owned no other real estate, and is now insolvent. It appears that the facts stated in the complaint are true, and that the defendants have not a meritorious defense the plaintiff's cause of action, and that the plaintiff is entitled to the relief demanded in the complaint, but this court is of the opinion that the plaintiff is not entitled as a matter of law to a judgment by default final, but only to a judgment by default and inquiry. It is now therefore ordered and adjudged that the motion of the defendants for time in which the file answer to said complaint be and the same is hereby refused and denied, and that the order of W. L. Lyon, clerk of the superior court of Bertie county, refusing the motion of the plaintiff for judgment and allowing said defendants additional time in which to answer is vacated and set aside. It is further ordered and adjudged that the plaintiff recover judgment against the said defendants upon the cause of action set out in the complaint by default and inquiry, with the effect provided by law, and that the said cause be transferred to the civil issue docket in order that such inquiry may be had."

The plaintiff excepted and assigned as error the refusal of the court below to grant his motion for judgment by default final against the defendants James S. Cherry and Annie L. Cherry, upon the causes of action set out in said complaint, and upon the facts appearing in the case and found by the judge in the said judgment and order, and appealed therefrom to the Supreme Court on North Carolina. This is the only exception and assignment of error in the record, and the only one to be heard on this appeal. The defendant Henry Chavis was not served with process and pleading and no relief asked against him.

Gillam & Davenport, of Windsor, for appellant.

Craig & Pritchett, of Windsor, for appellees.

CLARKSON J.

Freeman on Judgments, vol. 3 (5th Ed. 1925) part section 1282, says:

"The effect of a default as an admission and as dispensing with proof of the facts varies somewhat with the statutes governing the matter. Generally, however, a default admits all of the material traversible allegations of the declaration, complaint, or petition. (Italics ours.) It admits the facts alleged as to the cause of action and precludes any showing of defensive matters, though as to the damages, except in those cases where the clerk or the court is authorized to enter

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