North Am. Acceptance Corp. v. Samuels

• Decision Date: 23 June 1971
• Docket Number: No. 7121DC377,7121DC377
• Citation: 181 S.E.2d 794,11 N.C.App. 504
• Parties: NORTH AMERICAN ACCEPTANCE CORPORATION v. Mattie P. SAMUELS.
• Court: North Carolina Court of Appeals

Page 794

181 S.E.2d 794

11 N.C.App. 504

NORTH AMERICAN ACCEPTANCE CORPORATION v. Mattie P. SAMUELS.

No. 7121DC377.

Court of Appeals of North Carolina.

June 23, 1971.

Hollowell & Ragsdale, P.A. by William L. Ragsdale, Raleigh, for plaintiff appellee.

Vernon Hart, Winston-Salem, for defendant appellant.

MALLARD, Chief Judge.

Neither appellant nor appellee filed brief within the time prescribed by the rules. However, both have filed briefs and we therefore consider the case.

The parties stipulated that 'for purposes of this record of appeal it shall not be necessary to set out the Summons.' The certificate of service of the summons and complaint is not in the record. However, in the 'Entry of Default Judgment' and in defendant's brief, it is asserted that the summons and complaint were served on the defendant on 15 October 1970. We assume, therefore, that the summons and complaint were lawfully served.

The defendant's only assignment of error is as follows:

'1. THE ENTRY OF JUDGMENT DATED JNAUARY (sic) 14, 1971 WHEREIN THE WRIT OF POSSESSION WAS ORDERED.

(R p 4)

The Presiding Judge erred in signing said judgment in that:

a. The complaint alleges an agreement existed between Plaintiff/Appellee and Defendant/Appellant and yet said agreement was never filed with the Court and has never been made a part of the record nor has the Court made findings setting forth the contents of said agreement.

b. The complaint alleges that said agreement between the parties was one of vendor/vendee wherein Plaintiff/Appellee was selling real property to Defendant/Appellant.

c. The complaint prays for relief in the form of summary ejectment of the Defendant/Appellant from the real property allegedly being purchased by Defendant/Appellant from the Plaintiff/Appellee.

d. North Carolina General Statute 42--26 expressly provides that an action of summary ejectment only lies when the relationship of Landlord/Tenant exists between the parties. No finding has been recorded setting forth that such a relationship existed between Plaintiff/Appellee and Defendant/Appellant but to the contrary the record shows their relationship to be that of Vendor-Vendee.

e. The Court was without authority on the record to enter judgment for summary ejectment.'

The assignment of error does not mention the order dated 1 February 1971 denying the defendant's motion to set aside the default judgment. The notice of appeal was dated and filed 29 January 1971, more than ten days after the rendition of the judgment dated 14 January 1971, and no notice of appeal was served on the plaintiff. The appeal from the entry of the judgment dated 14 January 1971 should be dismissed because timely notice was not given nor properly served. See Brady v. Town of Chapel Hill, 277 N.C. 720, 178 S.E.2d 446 (1971); G.S. §§ 1--279, 1--280.

We hold that the allegations of the verified complaint were sufficiently particular as required by G.S. § 1A--1, Rule 8(a) (see Sutton v. Duke, 277 N.C. 94, 176 S.E.2d 161 (1970)) to give the defendant notice of the transactions and occurrences intended to be proved and the type of relief demanded.

Under G.S. § 1A--1, Rule 8(d), allegations in pleadings are admitted when not denied in a responsive pleading if a responsive pleading is required. In this case a responsive pleading was required, and the defendant did not file an answer denying the allegations of the complaint. Therefore under the rule, the allegations were deemed admitted.

In 3 Barron & Holtzoff, Fed.Prac. & Proc. (Wright Ed.), § 1216, it is stated:

'* * * If the default is established, the defendant has no further standing to contest the merits of plaintiff's right to recover. His only recourse is to show good cause for setting aside the default and, failing that, to contest the amount of the recovery.'

Although possession of the described real property and a money judgment were demanded in the complaint, the judge, after the entry of default by the clerk under G.S. § 1A--1, Rule 55(a), entered default judgment under G.S. § 1A--1, Rule 55(b)(2) for the recovery of the possession of the real property but did not include therein a judgment for the recovery of a sum of money. The defendant, by failing to answer, admitted that plaintiff was entitled to the possession of the real property. G.S. § 1A--1, Rule 8(d). The default was thus established.

In 3 Barron & Holtzoff, Fed.Prac. & Proc. (Wright Ed.), § 1217, the federal rule with respect to setting aside a default judgment is as follows:

'A motion to set aside a default or a judgment by default is addressed to the discretion of the court, and an adequate basis for the motion must be shown. In exercising this discretion the court will be guided by the...