Gillam v. . Cherry

ClarKSON, J. Freeman on Judgments, 3rd vol., 5th ed. (1925), part sec. 1282, says: “Tbe effect of a default as an admission and as dispensing with proof of tbe facts varies somewhat with tbe statutes governing tbe matter. Generally, however, a default admits all of the material traversable allegations of the declaration, complaint or petition. (Italics ours) It admits tbe facts alleged as to tbe cause of action and precludes any showing of defensive matters, though as to tbe damages, except in those cases where tbe clerk or tbe court is authorized to enter judgment for tbe amount claimed, there is no admission, but proof is required. Though an allegation be defective in form it is nevertheless admitted. When title or ownership is a material allegation, as in an action of ejectment or other action to try title, a default admits it. This is true as to tbe title of a personal representative as such, and bis default admits that be has sufficient assets to meet tbe claim alleged. So an alleged trespass is admitted, as is fraud, in some states. But tbe admission by a default extends only to those material matters which would be admitted by a failure to deny or traverse them in an ordinary case, and therefore does not extend to allegations which are mere conclusions of law.” 15 R. C. L., sec. 117, p. 667; 34 C. J., sec. 386, p. 173; Mitchell v. Express Co., 178 N. C., p. 235; Mfg. Co. v. McQueen, 189 N. C., p. 312. C. S., 595, subsections 1, 2, 3 and 4, set forth when judgments by default final may be bad on failure of defendant to answer, etc. C. S., 596, is as follows: “In all other sections, except those mentioned in tbe preceding section, when tbe defendant fails to answer and upon a like proof, judgment by default, and inquiry may be bad as provided in tbe last section but one, and inquiry shall be executed at tbe next succeeding term. If tbe taking of an intricate or long account is necessary to execute properly tbe inquiry, the court, at tbe return term, may order tbe account to be taken by tbe clerk of tbe court or some other fit person, and tbe referee shall make bis report at tbe next *198 succeeding term; in all other cases the inquiry shall be executed by a jury, unless by consent the court is to try the facts as well as the law.” Justice H. G. Connor, writing for a majority of the Court, in Junge v. MacKnight, 137 N. C., p. 285 (this case is reported in 135 N. C., p. 105, petition to rehear in which the first decision was reversed, Justice Connor in former opinion dissenting), it was held: “In an action to determine conflicting claims to real property, the failure of the defendant to answer at the return term entitled plaintiff to a judgment by default final in accordance with the facts stated in the complaint, without inquiry or proof of such facts.” In the Junge cases, supra, the effect of C. S., 595-6, was thoroughly discussed, and we need not go into'the controversy as a majority of the Court, in the last case, held that a judgment by default final was the correct procedure. Montgomery, J., concurring in the last case, said (p. 292) : “I conclude, therefore, that judgment by default and inquiry in sec. 386 of The Code (C. S., 596), has reference only to actions sounding in damages.” In Jernigan v. Jernigan, 178 N. C., p. 85, it is held: “This was a proceeding to set aside a judgment by default final on the ground of irregularity and excusable neglect. The action was to declare certain deeds void and the plaintiff the owner of the lands in fee simple. The complaint was duly verified and filed 3 July, 1916, and judgment by default final entered at September Term, no answer having been filed. The summons was issued returnable to the May Term, and was served on 11 May, 1916. The judgment by default final was regular (italics ours). Rev. 556 (4); Junge v. MacKnight, 137 N. C., 285; Stelges v. Simmons, 170 N. C., 44; Lee v. McCracken, ibid., 576.” In Greeley v. Sample et al., 22 Iowa Reports, p. 338, the principle is recognized: “Where default is made to a petition which alleges that defendant holds certain real estate fraudulently and in trust for another, such allegations will be taken as true.” Armstrong v. Asbury, 170 N. C., p. 160, cited by defendant, is not in conflict with the position here taken. In that case it is said, at p. 162: “In other words, the cause of action alleged against the defendant McRae is his liability upon the agreement between the stockholders, and his complaint is that he was not permitted to prove that he was not a party to the agreement. This he could not do, because he is precluded by the judgment by default and inquiry, which establishes the cause of action, that is, that he was a party to the agreement, and only leaves open the amount of the recovery. Banks v. Mfg. Co., 108 N. C., 282; Blow v. Joyner, 156 N. C., 142; Graves v. Cameron, 161 N. C., 549. The concluding sentence of the authority, relied on by the defendant *199 (Allen v. McPherson, 168 N. C., 436) is that ‘It (a judgment by default and inquiry) establishes merely that the plaintiff has a cause of action,’ and this brings it in harmony with the other cases.” We are of the opinion that plaintiff’s assignment of error should be allowed and judgment by default final rendered. For the reasons given, there is Error.