Presnell v. Beshears

• Decision Date: 26 March 1947
• Docket Number: 240
• Citation: 41 S.E.2d 835,227 N.C. 279
• Parties: PRESNELL v. BESHEARS et al.
• Court: North Carolina Supreme Court

41 S.E.2d 835

227 N.C. 279

PRESNELL v. BESHEARS et al.

No. 240

Supreme Court of North Carolina

March 26, 1947

Motion to set aside judgment rendered by default and inquiry. Motion allowed and plaintiff appealed.

Trivette Holshouser & Mitchell, of North Wilkesboro, for plaintiff.

Burke & Burke, of North Wilkesboro, for defendants E. L Beshears and Ed Beshears.

W H. McElwee, of North Wilkesboro, for defendant Wilton Beshears.

DEVIN Justice.

The motion to set aside the default judgment heretofore entered in the cause was based upon the ground that the plaintiff's complaint upon which the judgment was rendered did not state facts sufficient to constitute a cause of action against the defendants. There was no evidence or finding that the failure of the defendants to answer was due to excusable neglect. However, the court below being of opinion that the complaint was demurrable, and that defendants had a meritorious defense to the action, struck out the judgment and permitted the defendants to plead.

The effect of the failure of the defendants to appear in response to the summons and complaint personally served upon them was to establish pro confesso in the plaintiff a right of action of the kind properly pleaded in the complaint and thereupon the plaintiff became entitled as a matter of law to recover on the cause of action set out in his complaint. G.S. s 1-212; DeHoff v. Black, 206 N.C. 687, 175 S.E. 179; Johnson v. Sidbury, 225 N.C. 208, 34 S.E.2d 67. Defendants' failure to answer, however, admitted only the averments in the complaint and did not preclude them from showing, if they could, on this motion, that such averments were insufficient to warrant recovery. Beard v. Sovereign Lodge, W.O.W., 184 N.C. 154, 113 S.E. 661; Strickland v. Shearon, 193 N.C. 599, 604, 137 S.E 803. Hence they were entitled to have the judgment vacated if the facts set out in the complaint should be determined to be insufficient to constitute a cause of action, as there would then be no basis upon which the default judgment could be predicated. McIntosh, 713. And in this court the defendants demur ore tenus on the ground that the complaint does not state facts sufficient to constitute a cause of action.

So that the appeal presents the question of the sufficiency of the complaint to set out an actionable wrong for which these defendants may be held liable. This requires an examination of the allegations of the complaint.

The purpose of plaintiff's suit was to recover damages for a negligent injury to plaintiff's motor truck caused by defendants' truck, consequent upon a collision on the highway. It was alleged that plaintiff's truck was being driven along the highway from North Wilkesboro toward Boone on the right side of the highway, in a careful manner, and that the Ford truck of the defendants, which had been parked on the left side of the highway, was suddenly driven from the left side of the highway at an unlawful speed and without warning into and against plaintiff's truck, causing injury. As to the responsibility of the defendants for this injury, it was alleged that on said date 'the defendant E. L. Beshears was the owner of the old Ford truck which was being operated by the co-defendants Ed Beshears and Wilton Beshears as servants, agents and employees of their co-defendant E. L. Beshears. * * * That at the time of and immediately preceding the collision between the motor vehicles above referred to * * * the defendant E. L. Beshears and his agents and...