Moore v. . Mitchell , 61 N.C. 304 ( 1867 )

An action of assumpsit, for an unliquidated money demand, was brought by the plaintiff against the defendants to Spring Term, 1866. The cause was continued to Fall Term, when, the defendants not appearing by attorney or in person, judgment final by default was entered against them "for $11,160.49, of which $9,233.39 is principal money." This judgment was rendered on Saturday afternoon of the term, his Honor having instructed the attorneys of the court to enter judgments in plain cases, and it did not appear that he was on the bench when it was entered. Execution was issued upon the judgment, but was afterwards stayed by a writ of injunction.

The motion to set aside the judgment was allowed, and the plaintiff appealed. The judgment was contrary to the course and practice of the court. Rev. Code, ch. 31, sec. 57(2) and sec. 91; Steph. Pl., 105; Hartsfield v. Jones, 4 Jon., 309; Williams v. Beasley, 13 Ire., 112.

Therefore, being irregular, it should be set aside. Winslow v. Anderson, 2 Dev. Bat., 9; Powell v. Jopling, 2 Jon., 400; Bender v. Askew, 3 Dev., 149; White v. Albertson, ibid., 241; Crumpler v. Governor, 1 Dev., 52; Andrew v. Devane, 2 Hay., 373; Williams v. Beasley, (305) 13 Ire., 112; Keaton v. Banks, 10 Ire., 381; Davis v. Shaver, ante, 18; Sharp v. Rintels, ante, 34; Whitley v. Black, 2 Hawk., 179; Pettijohn v. Beasley, 1 Dev. Bat., 254. An irregular judgment may be set aside at a subsequent term. An irregular judgment is one contrary to the course and practice of the Court.

The exigency of the writ was to "answer the plaintiff of a plea of trespass on the case to his damage fifteen thousand dollars" — unliquidated damages.

The judgment was: "the defendants failing to appear, judgment final by default is entered against them for $11,160.49, of which $9,233 is principal money."

At the next term the defendants moved to set aside the judgment, and the motion was allowed. The question is, Had the court the power to set aside the judgment?

Our statute, Rev. Code, ch. 31, sec. 57, provides that upon failure of the defendant to appear and plead, the plaintiff may have judgment by default, which, in actions of debt, shall be final, unless where damages are suggested on the roll; and in that case, and in all others not specially provided for, where the recovery shall be in damages, a writ of inquiry shall be executed at the next term. At the appearance term it would have been regular, and according to the course and practice of the court, to enter judgment by default (the defendant not appearing), and award a writ of inquiry to be executed at the next term, when a jury would pass upon the damages, and the court render judgment upon the verdict. Here the case was not submitted to a jury at all, but the court ascertained the damages and gave final judgment. This was certainly irregular, and the judgment was properly set aside.

In justice to the learned judge who presided, it is proper to say that under leave given to the attorneys to enter judgment in plain cases, the plaintiff's attorney, by mistake, entered up the irregular judgment. By plain cases the judge doubtless meant such cases as (306) are enumerated in section 91 of said statute.

PER CURIAM. There is no error.

Cited: Foard v. Alexander, 64 N.C. 70.