Williams Fulgham Lumber Co. v. Welch
| Citation | 148 S.E. 250,197 N.C. 249 |
| Decision Date | 22 May 1929 |
| Docket Number | 559. |
| Parties | WILLIAMS FULGHAM LUMBER CO. v. WELCH. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Buncombe County; P. A. McElroy, Judge.
Action by the Williams Fulgham Lumber Company against I. M. Welch in which defendant set up a counterclaim. Judgment by default, and inquiry was entered against plaintiff in favor of defendant on the counterclaim. From an order vacating the default judgment, defendant appeals. Affirmed.
Unless copy of answer containing counterclaim is served on plaintiff, allegations thereof must be considered denied (Pub.Laws Ex.Sess.1924, c. 18; Pub.Laws 1927, c. 66).
Civil action wherein plaintiff seeks to recover for breach of contract in connection with the sale of a certain quantity of lumber. Summons issued and complaint filed November 25, 1927. Defendant answered December 10, 1927, denied liability, and set up a counterclaim for $3,600.
The answer of the defendant, containing said counterclaim, was not served upon the plaintiff, and no answer, demurrer, or reply denying the same was filed by the plaintiff; whereupon on March 26, 1928, judgment by default and inquiry was entered against the plaintiff and in favor of the defendant on said counterclaim.
Thereafter December 21, 1928, on motion of plaintiff, said judgment by default and inquiry was set aside, on the ground that no copy of the answer containing the counterclaim was ever served on the plaintiff or its attorney.
From this order, vacating the default judgment, the defendant appeals, assigning error.
Hoyle & Rudisill, of Lincolnton, and W. A. Sullivan and J. M. Horner, Jr., both of Asheville, for appellant.
Wells, Blackstock & Taylor, of Asheville, for appellee.
It is provided by chapter 18, Public Laws Extra Session 1924, among other things, that: "If a counterclaim is plead against any of the plaintiffs and no copy of the answer containing such counterclaim shall be served upon the plaintiff or plaintiffs or his or their attorneys of record, such counterclaim shall be deemed to be denied as fully as if the plaintiff or plaintiffs had filed an answer or reply denying the same." Clearly, under this provision of the law, the trial court was correct in setting aside the judgment entered by default and inquiry on the defendant's counterclaim.
But it is contended on behalf of the defendant that chapter 18 Public Laws Extra Session 1924, was repealed by chapter 66, Public Laws 1927, for in the latter act it is provided that: "The defendant shall, when he files answer, likewise file at least one copy thereof for the use of the plaintiff, and his attorney; and the clerk shall not receive...
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