Witt v. . Long ( 1885 )

The motion to dismiss the appeal cannot be allowed. While it would be more convenient to counsel, and therefore better, to have the record printed as soon as practicable after the appeal shall be docketed, and the Court commends this practice, yet it is a sufficient compliance with the rule to have it printed by the time the appeal shall be called for argument in its order. Indeed, the rule so provides in terms.

We take this opportunity to suggest that the appellant should be careful to see that the rule is duly observed in respect to the parts of the record required by it to be printed. A mere colorable compliance with it would be treated as none at all, and the appeal might be dismissed in such case.

The affidavit of the surety to the undertaking upon appeal attached thereto states that he is worth double the amount therein specified. This is sufficient. The statute (The Code, sec. 560) does not require that the surety shall make affidavit that he is worth double the amount "over and above his liabilities and his homestead and exemptions allowed by law." If the appellee is not satisfied with the solvency of the surety, the statute just cited provides that he may except to the sufficiency of the surety in that respect and have relief as allowed.

The judgment was clearly irregular. It was taken by default final, the defendants having failed to answer, it seems, upon the supposition that it was allowed by The Code, sec. 385. The court misapprehended the true meaning of that section. It provides that judgment by default final may be had on failure of defendant to answer as follows: (1) Where the complaint sets forth one or more causes of action, (391) each consisting of a breach of an express or implied contract to pay, absolutely or upon a contingency, a sum or sums of money fixed by the terms of the contract, or capable of being ascertained therefrom by computation, upon proof of the personal service of the summons, or of service of summons by publication on one or more of the defendants, and upon the complaint being verified, judgment shall be entered at the return term for the amount mentioned in the complaint against the defendant or defendants, or against one or more of several defendants, in the cases provided in sec. 232.

Now, first, the cause of action set forth in the complaint did not consist "of the breach of an express or implied contract to pay absolutely or upon a contingency a sum or sums of money fixed by the terms of the contract, or capable of being ascertained therefrom by computation." It consisted of an open account of the plaintiffs against the defendants for goods the former had sold to the latter. The plaintiffs alleged that they had sold and delivered the goods to the defendants, and they were reasonably of the value stated, and that the defendants agreed to pay for them. This allegation of agreement does not imply that the defendant stipulated to pay the price charged for the goods, it simply means that the goods were worth reasonably that sum of money, and as the defendants got them, the law implied their agreement to pay the sum stated. The sum to be paid was not fixed by the terms of the contract, or implied from it, nor could the same be ascertained therefrom by computation, because no terms had been fixed as to the price other than such as the law implied, which was the reasonable value of the goods to be ascertained, not by mere computation, but by due inquiry as to the value. The judgment, therefore, should have been by default and inquiry, as allowed by The Code, sec. 386, and the inquiry should have been executed at the term of the court next after the appearance term.

Secondly, the complaint was not verified, and therefore, if the debt sued for had been such as in a proper case would have warranted a judgment final, such judgment could not have been given. The statute expressly makes verification of the complaint essential (392) in order to entitle the plaintiff to judgment by default final in a proper case. The object is to afford some security that the plaintiff has such contract as he alleges, and will not make his demand and obtain judgment therefor for more than is due. So that the plaintiffs were not, according to law and the due course of procedure, entitled to judgment by default final. White v. Snow, 71 N.C. 232; Brickell v. Bell, 84 N.C. 83;Rogers v. Moore, 86 N.C. 86.

There is error. The judgment by default final must be set aside and judgment by default and inquiry entered according to law. To that end let this opinion be certified to the Superior Court of Haywood.

Error. Reversed.

Cited: Hammerslaugh v. Farrior, 95 N.C. 137; Hartman v. Farrior,ibid., 178; Walker v. Scott, 102 N.C. 489; Horton v. Green, 104 N.C. 403;Skinner v. Terry, 107 N.C. 108; Hunt v. R. R., ibid., 448; Edwards v. Henderson, 109 N.C. 84; Jeffries v. Aaron, 120 N.C. 169;Smith v. Montague, 121 N.C. 94; McLeod v. Nimocks, 122 N.C. 441; Jungev. McKnight, 137 N.C. 290; Currie v. Mining Co., 157 N.C. 220; Bostwickv. R. R., 179 N.C. 487; Baker v. Corey, 195 N.C. 301; Supply Co. v.Plumbing Co., 195 N.C. 632.