Wilson v. Chandler , 238 N.C. 401 ( 1953 )

78 S.E.2d 155 (1953) 238 N.C. 401

WILSON
v.
CHANDLER et al.

No. 176.

Supreme Court of North Carolina.

October 14, 1953.

R. W. Wilson, Bill Atkins, W. E. Anglin, Burnsville, for plaintiffs, appellants.

No counsel contra.

DENNY, Justice.

The appellee filed no brief in this Court but lodged a motion to dismiss the appeal on the ground that the appellants failed to make up and serve the case on appeal on the appellee or his counsel.

If an error relied on by an appellant is presented by the record proper, as it is on the present record, no case on appeal is required. The record constitutes the case to be filed in this Court and the appellant is not required to serve it on the appellee or his counsel. The motion is without merit and is denied. Bishop v. Black, 233 N.C. 333, 64 S.E.2d 167; Reece v. Reece, 231 N.C. 321, 56 S.E.2d 641; Russos v. Bailey, 228 N.C. 783, 47 S.E.2d 22; Privette v. Allen, 227 N.C. 164, 41 S.E.2d 364; North Carolina Bessemer Co. v. Piedmont Hardware Co., 171 N.C. 728, 88 S.E. 867; Board of Com'rs of Buncombe County v. Scales, 171 N.C. 523, 88 S.E. 868.

In an action for damages for trespass upon realty in which there is no allegation to the effect that the defendant is in actual possession of the property or any part thereof, the defendant is not required to post bond before answering, as required by G.S. §§ 1-111 and 1-211, subsection 4. Hodges v. Hodges, 227 N.C. 334, 42 S.E.2d 82. Furthermore, there is no allegation in the complaint that the defendants or any of them claim title to plaintiffs' lands, as described in the complaint, or any part thereof. Hence, that portion of the judgment declaring the plaintiffs to be the owners in fee simple and entitled to the possession of the lands described in the complaint, in fact constitutes no more than a finding as to matters alleged in the complaint as a basis for plaintiffs' right of recovery.

The judgment by default and inquiry established plaintiffs' cause of action as alleged in their complaint and their right to recover of the defendant G. W. Chandler at least nominal damages. Consequently, the plaintiffs are entitled to such damages as flow from or arise out of said cause of action. Only the amount of these damages, to be ascertained by a jury, is left open for inquiry. G.S. § 1-212; DeHoff v. Black, 206 N.C. 687, 175 S.E. 179; Mitchell v. Town of Ahoskie, 190 N.C. 235, 129 S.E. 626; Armstrong Cator & Co. v. E. M. Asbury & Co., 170 N.C. 160, 86 S.E. 1038; Farmer-Cole Plumbing Co. v. Wilson Hotel Co., 168 N.C. 577, 84 S.E. 1008; Junge v. MacKnight, 137 N.C. 285, 49 S.E. 474; McLeod v. Nimocks, 122 N. C. 437, 29 S.E. 577. Therefore, the movant was not entitled to have the judgment set aside in the absence of a showing by him and a finding by the court that his neglect was excusable and that he has a meritorious defense to plaintiffs' cause of action. Stephens v. Childers, 236 N.C. 348, 72 S.E.2d 849; Perkins v. Sykes, 233 N.C. 147, 63 S.E.2d 133; Van Hanford v. McSwain, 230 N.C. 229, 53 S.E.2d 84; Whitaker v. Raines, 226 N.C. 526, 39 S.E.2d 266; Johnson v. Sidbury, 225 N.C. 208, 34 S.E.2d 67.

Since there is no showing or finding in the court below that the appellee's failure to answer was due to excusable neglect and that he has a meritorious defense, it was error to strike out the default judgment, and the order to that effect is set aside and the cause remanded for further proceedings as provided by law. Presnell v. Beshears, 227 N.C. 279, 41 S.E.2d 835.

Reversed.