Williams-Fulghum Lumber Co. v. Welch

Stacy, C. J. It is provided by chapter 18, Public Laws, Extra Session, 1924, among other things, that “if a counterclaim is pleaded against any of the plaintiffs and no copy of the answer containing such counterclaim shall be served upon the plaintiff or plaintiffs or his or their attorneys of record, such counterclaim shall be deemed to be denied as fully as if the plaintiff or plaintiffs had filed an answer or reply denying the same.” Clearly, under this provision of the law, the trial court was correct in setting aside the judgment entered by default and inquiry on the defendant’s counterclaim. *251 But it is contended on bebalf of tbe defendant that chapter 18, Public Laws, Extra Session, 1924, was repealed by chapter 66, Public Laws, 1927, for in the latter act it is provided that “The defendant shall, when he files answer, likewise file at least one copy thereof for the use of the plaintiff, and his attorney, and the clerk shall not receive and file any answer until and unless such copy is filed therewith.” The 1924 act deals exclusively with counterclaims, while no specific reference is made to counterclaims in the 1927 act. Hence it could hardly be said that a repeal was intended by the Legislature or that such has resulted by operation of law. S. v. Perkins, 141 N. C., 797, 53 S. E., 735. Eepeals by implication are not favored by the law, and it is the policy of the courts to avoid such construction unless the repug-nancy between a subsequent act and one of prior date be irreconcilable. Bunch v. Commissioners, 159 N. C., 335, 74 S. E., 1048. “Eepeals by implication or construction are not favored, and for such a repeal to take effect, the repugnancy between the latter statute and one of earlier date must be clear, and only then will the repeal operate to the extent of such repugnancy.” Waters v. Commissioners, 186 N. C., 719, 120 S. E., 450. To like effect is the decision in Litchfield v. Roper, 192 N. C., 202, 134 S. E., 651. No such irreconcilable conflict exists between the two statutes now under consideration. Hence, it would appear, from a proper construction of both statutes, that unless a copy of the answer containing a counterclaim, is served on the plaintiff or his attorney, the allegations going to make up the counterclaim are to be considered and dealt with as denied. It follows, therefore, that the defendant has no just cause for complaint at the action of the trial court in allowing the motion of the plaintiff to strike out the judgment entered by default and inquiry on his counterclaim. Affirmed.