Mcnair v. Yarboro

• Decision Date: 16 September 1923
• Docket Number: (No. 71.)
• Citation: 118 S.E. 913,186 N.C. 111
• Parties: McNAIR. v. YARBORO.
• Court: North Carolina Supreme Court

(186 N.C. 111)

118 S.E. 913

McNAIR.

v.YARBORO.

(No. 71.)

Supreme Court of North Carolina.

Sept. 16, 1923.

Appeal from Superior Court, Edgecombe County; John H. Kerr, Judge.

Action by A. W. McNair, Assignee, against O. Y. Yarboro. From a judgment setting aside default Judgment and directing that defendant be allowed to answer, plaintiff appeals. Affirmed.

On the hearing it was made to appear that the summons in an action for a moneyed demand for a sum certain was issued from clerk's office on February 8, 1923. That the same together with a copy of complaint purporting to be verified was served on defendant on February 10th, the verification being in form as follows;

"A. W. McNair, being duly sworn, deposes and says that the statements contained in the foregoing complaint are true to the best of his knowledge, information, and belief, save those matters which are stated on information and belief, and as to those matters he believes them to be true." Signed, sworn to, etc.

That in 21 days after service of summons and complaint, to wit, March 4th, defendant submitted a duly verified answer setting forth a defense apparently meritorious, and the clerk being of opinion that same should not be considered, on March 5th, the first Monday thereafter, entered judgment by default final for the amount due as alleged in the complaint. On March 4th, defendant on notice and affidavits setting forth merits, moved to set the same aside for irregularity in that there had been no proper verification and for other reasons there alleged. Motion refused and defendant appealed.

On the hearing of the appeal in the superior court, there was judgment setting aside the judgment by default final, and directing that defendant be allowed to answer. Plaintiff excepted and appealed.

George M. Fountain, of Tarboro, for appellant.

S. A. Newell, of Louisburg, for appellee.

HOKE, J. [1] The statute establishing a proper form for verification of pleadings, Cons. St. § 529, requires a statement by affidavit in substance and effect that "the facts set forth in the designated pleading are true, except as to those matters stated on information and belief, and as to those matters he believed them to be true." And it has been held in various decisions construing the section that the attempted verification in the present instance is not a sufficient compliance. Carroll v. McMillan, 133 N. C. 140, 45 S. E. 530; Cowles v. Hardin, 79 N. C. 577.

This being true, our legislation is to the effect further, Cons. St. § 595, subsec. 1, that in order to judgment by default final in a moneyed demand properly stated, the pleading should be verified as the statute requires, and our cases on the subject holdthat a judgment by default final in that kind of suit, on an unverified complaint is irregular, and will be set aside on motion made in apt time, and on a proper show of merits. Miller v. Curl, 162 N. C. 1, 77 S. E. 952; Cowan v. Cunningham, 146 N. C. 453, 59 S. E. 992; Becton v. Dunn, 137 N. C. 562, 50 S. E. 289.

It is earnestly insisted for appellant that under subsequent legislation amending the Consolidated Statutes, more especially chapter 92, Extra Session 1921, a verified complaint is no longer required for a judgment by default final, where a copy of complaint properly setting forth the cause of action is served on the defendant with...