Mitchell Bros. v. Southern Exp. Co.

• Decision Date: 08 October 1919
• Docket Number: 233.
• Citation: 100 S.E. 307,178 N.C. 235
• Parties: MITCHELL BROS. v. SOUTHERN EXPRESS CO. ET AL.
• Court: North Carolina Supreme Court

100 S.E. 307

178 N.C. 235

MITCHELL BROS. v. SOUTHERN EXPRESS CO. ET AL.

No. 233.

Supreme Court of North Carolina

October 8, 1919

Appeal from Superior Court, Lenoir County; Guion, Judge.

Action by W. A. Mitchell and another, partners as Mitchell Brothers against the Southern Express Company and another. From a judgment for plaintiffs, defendant Adams Express Company appeals. No error.

Judgment of default and inquiry against a defendant who failed to plead establishes against him the cause of action alleged; so that he cannot rely on the provisions in the bill of lading under which plaintiff shipped, and which was only admitted on the issue of damages, that action must be brought within six months from the injury to shipment.

This action was instituted by the plaintiffs against the Southern Express Company on March 13, 1914, to recover damages to a carload of horses and mules alleged to have been delivered to Adams Express Company at Cincinnati, Ohio, on October 3 1912, and by the Adams Express Company delivered, in the city of Richmond, Va., to the Southern Express Company for transportation to Kinston, N. C., and by the Southern Express Company delivered to the plaintiffs at Kinston on October 5 1912; the damages claimed being for alleged injury to a mule and two horses, due, among other causes as alleged, to the improper arrangement of timbers in said car. Summons was not originally issued against the Adams Express Company, but at the June term, 1915, an order was made adjudging that the Adams Express Company be made a party defendant to the action, and that summons issue against the said express company. Service was not obtained, and at the April term 1916, another order was rendered by the court, adjudging that the said express company be made a party defendant to the action and that summons issue against it, and on May 15 1916, which was before the convening of any court subsequent to the said April term, 1916, summons was issued against the Adams Express Company and duly served on May 19, 1916, returnable to the June term, 1916, which convened on June 12th. A duly verified complaint was filed against both of the defendants on January 26, 1916, which was before service was made upon the Adams Express Company, but was after an order adjudging that it be made a party had been rendered.

The plaintiffs seek to recover against both of the defendants the sum of $372.50 for causes as appear in the complaint. At the April term, 1918, a judgment by default and inquiry was rendered against the Adams Express Company, which company had then filed no pleading and had made no appearance in court of any nature. During the April term, 1918, of said court, and after the rendition of the judgment entitled "Judgment by Default and Inquiry," the defendant Adams Express Company for the first time made an appearance in court, and moved the court to strike out said judgment for surprise and excusable neglect, alleging that it had, soon after being summoned, instructed its district counsel to retain counsel, and that the defendant Adams Express Company was not aware that appearance had not been entered for it and that a defense had not been asserted until after the rendition of said judgment by default and inquiry. The motion to strike out the judgment was continued and was refused and disallowed by his honor, Judge Guion, at the June term, 1919, and the action directed to proceed to trial upon the inquiry as to the amount of damages sustained by the plaintiffs.

The answer of the Southern Express Company was filed as appears of record on April 8, 1918, and the plaintiffs filed replication as set out in the record on April 8, 1918.

At the June term, 1919, when the cause came on for trial upon the whole cause of action as alleged...