Rich v. NORFOLK SOUTHERN RAILWAY COMPANY

92 S.E.2d 768 (1956) 244 N.C. 175

Alfred R. RICH
v.
NORFOLK SOUTHERN RAILWAY COMPANY, G. T. Williams, J. A. Woods, James McDonald, and W. L. Williams.

No. 672.

Supreme Court of North Carolina.

May 23, 1956.

N. H. Godwin and Daniel M. Williams, Jr., Durham, for plaintiff, appellant.

Simms & Simms, Raleigh, and Spears & Spears, Durham, for defendants, appellees.

BOBBITT, Justice.

The findings of fact made by Judge Hall are not challenged. Are they sufficient to support his order? If so, the order must be affirmed. James v. Pretlow, 242 N.C. 102, 86 S.E.2d 759, and cases cited.

The facts found include those stated in (our) numbered paragraphs below.

1. The summons and complaint were served on the corporate defendant and on defendants G. T. Williams, W. L. Williams and J. A. Woods. There was no service on defendant James McDonald.

2. Corporate defendant, as was its custom, employed counsel, a well-known firm in Durham County and a well-known firm in Wake County, to defend the action for and on behalf of itself and its codefendants, they being employees of the corporate defendant and members of the crew of the train involved in the collision.

3. Counsel so employed acted thereafter in behalf of all defendants, including James McDonald. All defendants, through counsel, moved for additional time within which to plead. An order allowing all defendants such additional time was signed by the assistant clerk of the superior court. Within the time allowed, to wit, on 10 September, 1954, an answer was filed by all defendants through said counsel, the said assistant clerk signing an entry to the effect that said answer was then filed. The only verification was by a Vice-President and Secretary of the corporate defendant, whose purpose and intention was to verify said answer for and in behalf of all defendants. The verification was before a notary public in Norfolk, Virginia.

4. Nothing further occurred until 12 April, 1955, when plaintiff, without notice to any of the defendants or to any of their counsel of record, moved before the clerk of the superior court for judgment by default and inquiry, which motion was allowed and judgment by default and inquiry was then signed as stated above.

5. The individual defendants G. T. Williams, W. L. Williams and J. A. Woods have a meritorious defense to plaintiff's cause of action; and their failure to verify said answer was not due to any negligence on their part.

6. The said judgment by default and inquiry was "improvidently and inadvertently" entered by the clerk.

Plaintiff bases his position on the ground that the answer filed 10 September, 1954, as to the individual defendants, was an unverified answer. Therefore, the argument runs, the individual defendants filed no answer; and plaintiff was entitled to said judgment by default and inquiry for want of answer.

The complaint was verified. Therefore, verification of the answer was required. G.S. § 1-144. The purpose of this statutory requirement is to eliminate dilatory pleadings in cases where no real issue is involved. Thus, one who supports his pleading by his oath is not put to the delay and expense incident to a jury trial unless the answering party supports his denial or counter allegations by his oath. Griffin v. Asheville Light Co., 111 N.C. 434, 16 S.E. 423.

The basic rule is that the verification, in substance as prescribed, must be made by each answering party. G.S. § 1-145. However, an exception is made when "there are several parties united in interest and pleading together." In such case, the verification must be "by one at least of such parties acquainted with the facts, if the party is in the county where the attorney resides and is capable of making the affidavit." (Italics added.) G.S. § 1-145. The word "if" as used here is synonymous with "provided." And the word "the" refers to the attorney for the parties who file the joint answering pleading.

The wording of G.S. § 1-145 seems more appropriate in respect of a joint pleading filed by two or more individuals. Whether the exception in respect of joint pleadings relates solely to that situation need not be decided on this appeal. The verification by the Vice-President and Secretary of the corporate defendant, unchallenged as a proper verification as to the corporate defendant, was not verification by or in behalf of the individual defendants in compliance with G.S. § 1-145. (Incidentally, the reason for the requirement that the affiant be one who resides in the county where the attorney resides rather than in the county where the cause of action arose or where the action is pending is somewhat obscure. Ita lex scripta est.) The deficiency, upon this record, was a technical one; for it appears plainly that all defendants, represented by counsel, were preparing in good faith for a contested trial on the merits.

The judgment by default and inquiry makes no reference whatever to the joint answer filed 10 September, 1954, by all defendants. Whether the clerk was aware that the answer had been filed does not appear. Suffice it to say, the joint answer on file and unchallenged from 10 September, 1954, to 12 April, 1955, was ignored.

The jurisdiction of a clerk of the superior court to enter judgments by default final and by default and inquiry is both conferred and limited by statute. G.S. § 1-209 et seq. Deans v. Deans, 241 N.C. 1, 84 S.E.2d 321; Boone v. Sparrow, 235 N.C. 396, 70 S.E.2d 204. These statutes do not deprive the superior court in term of its jurisdiction, but give the clerk concurrent jurisdiction in respect of judgments specifically covered by their provisions. Hill v. Huffines Hotel Co., 188 N.C. 586, 125 S.E. 266; Caldwell v. Caldwell, 189 N.C. 805, 128 S.E. 329.

As stated by Denny, J., in Moody v. Howell, 229 N.C. 198, 200, 49 S.E.2d 233, 234: "A motion to set aside a judgment by default final or by default and inquiry entered by the Clerk pursuant to the authority contained in G.S. §§ 1-211 and 1-212, may be made either before the Clerk or the Judge of the Superior Court. Caldwell v. Caldwell, 189 N.C. 805, 128 S.E. 329. The authority of the Clerk to enter judgments pursuant to the provisions of the above statutes, as well as the power to vacate such judgments, is concurrent with and in addition to that of the Judge of the Superior Court, and the jurisdiction of the Judge on a motion to set aside a judgment so entered by the Clerk, is original as well as appellate. Caldwell v. Caldwell, supra."

Moreover, when an answer is filed, the cause is transferred by operation of law to the superior court for trial at term on the issues raised. G.S. § 1-171. The clerk's jurisdiction to enter judgment by default or by default and inquiry exists when, but only when, no answer has been filed. Upon the filing of an answer, judgment by default or by default and inquiry may not be entered unless and until the answer has been stricken upon motion and upon hearing after due notice. Bailey v. Davis, 231 N.C. 86, 55 S.E.2d 919; Cahoon v. Everton, 187 N.C. 369, 121 S.E. 612. Too, a judgment by default and inquiry is an interlocutory judgment. Rogers v. Moore, 86 N.C. 85, 86; DeHoff v. Black, 206 N.C. 687, 175 S.E. 179. When such judgment is signed by the clerk, the cause is transferred by operation of law to the superior court for further hearing in term. G.S. § 1-212. When so transferred, the superior court judge is "to proceed to hear and determine all matters in controversy in such action, * * *." G.S. § 1-276.

In short, defendants' motion in the cause to set aside said judgment by default and inquiry was properly made before the judge of the superior court.

Under the former practice, the issues in a cause were joined by pleadings filed at the term to which process was returnable. Gilchrist v. Kitchen, 86 N.C. 20. A motion for judgment for want of an answer, or for want of a verified answer, was made before the presiding judge at term. Upon hearing, the presiding judge had plenary authority, in his discretion, to extend the time for filing answer, or to permit defendant to verify an answer theretofore filed, if this were necessary in furtherance of justice. Griffin v. Asheville Light Co., supra, and cases cited.

Unquestionably, a superior court judge now has such power. G.S. § 1-152. Indeed, Ashe, J., in Gilchrist v. Kitchen, supra, after referring to the statute (then C.C.P. sec. 133), says: "But, independent of The Code, we hold that the right to amend the pleadings of a cause and allow answers or other pleadings to be filed at any time, is an inherent power of the Superior Courts, which they may exercise at their discretion, unless prohibited by some statutory enactment or unless vested rights are interfered with." (Italics added.) Mallard v. Patterson, 108 N.C. 255, 13 S.E. 93; Best v. British & American Mortgage Co., 131 N.C. 70, 42 S.E. 456. The statutes vesting limited jurisdiction in the clerk were not intended nor can they be construed so as to strip the judge of such discretionary power or to circumvent his opportunity to exercise it. Bailey v. Davis, supra.

When the answer filed 10 September, 1954, by all defendants and raising serious issues of fact, remained on file without challenge until 12 April, 1955, neither the plaintiff nor the clerk was at liberty to ignore it even though deficient in respect of verification by the individual defendants. Plaintiff's remedy was by motion, after due notice to the opposing parties or their counsel, to strike out such answer and then for judgment for want of answer. Assuming it would have been proper for plaintiff to move before the clerk to strike out the answer and for judgment by default and inquiry, and the clerk had granted said motions, after due notice and hearing, because of lack of authority to extend the time for filing answer or for verifying the answer theretofore filed or for other cause, defendants could have excepted and appealed. Upon appeal, the judge of the superior court, in his discretion, might or might not have granted defendants' motion for an extension of time. Any other procedure would deprive the judge of the superior court of an opportunity to exercise his discretionary power, statutory and inherent, to grant such extension.

The clerk had no authority to enter judgment by default and inquiry in the absence of due notice to defendants or their counsel of plaintiff's motion therefor and a hearing thereon. The said judgment by default and inquiry was an irregular judgment, rendered contrary to the course and practice of the court, properly attacked by defendants' motion in the cause. Mills v. Richardson, 240 N.C. 187, 81 S.E.2d 409, and authorities cited. Having so determined, it was a matter within the discretion of Judge Hall to allow the individual defendants to verify, nunc pro tunc, the answer theretofore filed by them.

The procedure required is analogous to that in actions for the recovery or possession of real property. In such actions, if defendant, unless excused under G.S. § 1-112, fails to file the required bond, plaintiff is entitled to judgment by default final as to title and possession. G.S. § 1-111. By statute, the clerk is authorized to enter such judgment. G.S. §§ 1-209, 1-211, subd. 4. See Morris v. Wilkins, 241 N.C. 507, 85 S.E.2d 892. Even so, when defendant answers without filing the required bond, judgment by default final by reason of defendant's failure to file such bond is irregular unless entered after hearing on return of notice to defendant to appear and show cause why this should not be done. Shepherd v. Shepherd, 179 N.C. 121, 101 S.E. 489; Gill v. Porter, 174 N.C. 569, 94 S.E. 108; Becton v. Dunn, 137 N.C. 559, 50 S.E. 289; Cooper v. Warlick, 109 N.C. 672, 14 S.E. 106; McMillan v. Baker, 92 N.C. 110.

Having reached the conclusion that the said judgment by default and inquiry was properly set aside for the reasons stated, we need not discuss the sufficiency of the facts found to warrant setting aside said judgment by default and inquiry on the ground of excusable neglect, etc., defendants having a meritorious defense, under G.S. § 1-220. One sufficient ground for sustaining the order is enough.

In accordance with Judge Hall's order, the individual defendants have verified the answer theretofore filed by them 10 September, 1954. After much ado about very little, it would seem appropriate for plaintiff now to concentrate on the merits of his action and to get on with the trial.

The order of Judge Hall is, in all respects,

Affirmed.

DEVIN, J., took no part in the consideration or decision of this case.