White v. Southard

72 S.E.2d 756 (1952) 236 N.C. 367

WHITE
v.
SOUTHARD.

No. 305.

Supreme Court of North Carolina.

October 29, 1952.

Horace Kennedy and Joe T. Mull, Shelby, for plaintiff, appellant.

A. A. Powell, Shelby, for defendant, appellee.

DENNY, Justice.

The appellant contends that the appellee is not entitled to have the default judgment, entered 28 October, 1950, set aside, unless he shows excusable neglect and a meritorious defense as required by the provisions of G.S. § 1-220. This contention is without merit. The provisions of G.S. § 1-220 are inapplicable to the facts disclosed on this record.

A clerk of the Superior Court may, in proper cases, when no answer has been filed, enter a judgment by default final or default and inquiry as authorized by G. S. §§ 1-211, 1-212 and 1-213. G.S. § 1-214. However, when an answer has been filed, whether before or after the time for answering had expired, so long as it remains filed of record, the clerk is without authority to enter a judgment by default. Bailey v. Davis, 231 N.C. 86, 55 S.E.2d 919; Cahoon v. Everton, 187 N.C. 369, 121 S.E. 612; Carolina Investment Co. v. Kelly, 123 N.C. 388, 31 S.E. 671. And when the clerk cannot determine whether an answer was filed before or after he signed a judgment by default, such judgment, upon proper motion in the cause, should be set aside.

The judgment below will be upheld.

Affirmed.