Cook v. . Bradsher

WiNBORNE, J. In brief of plaintiffs, appellees, it is stated that “The only question involved is the legality of the judgment signed by the clerk of Superior Court of Person County, November 7, 1938.” Upon that arises this question: When defendants in this action failed to answer, did the clerk of Superior Court have authority, upon the allegations of the complaint, to render a judgment by default final ? The statute points to a negative answer. Public Laws, Extra Session 1921, ch. 92, subsection 12 of section 1. In this State the clerk of Superior Court is a court of very limited jurisdiction, having only such authority as is given by statute. McCauley v. McCauley, 122 N. C., 288, 30 S. E., 344; Dixon v. Osborne, 201 N. C., 489, 160 S. E., 579; Beaufort County v. Bishop, 216 N. C., 211, 4 S. E. (2d), 525. The statute, Public Laws, Extra Session 1921, ch. 92 relating to civil procedure in regard to process and pleadings, and to expediting and to reducing the cost of litigation, provides in subsection 9 of section 1 that “if no answer is filed, the plaintiff shall be entitled to judgment by default final or default and inquiry as authorized by sections 595, 596 and 597 of Consolidated Statutes of 1919, and all present or future amendments of said sections”; and in subsection 12 of section 1, that “the clerks of the Superior Courts are authorized to enter the following *14 judgments: (a) All judgments of voluntary nonsuit; (b) all consent judgments . . . (c) in all actions upon notes, bills, bonds, stated accounts, balances struck, and other evidences of indebtedness within the jurisdiction of the Superior Court, (d) All judgments by default final and default and inquiry as are authorized by sections 595, 596, 597 of the Consolidated Statutes, and in this act provided.” It is noted that O. S., 596, pertains to judgments by default and inquiry, and 0. S., 597, to judgments by default on counterclaims set up by answer. Under 0. S., 595, judgment by default final may be had on failure of defendant to answer “(1) When the complaint sets forth one or more causes of action, each consisting of the breach of an express or implied contract to pay, absolutely or upon a contingency, a sum of money fixed by the terms of the contract, or capable of being ascertained therefrom by computation . . .” Other sections are patently not applicable here. Applying these statutes to the facts alleged in the complaint in the present action, and by process of elimination, it is seen that the clerk of Superior Court is given no authority to enter the judgment sought to be set aside and vacated. The action is not upon notes, bill, bond, stated account, balance struck or other evidence of indebtedness. It is not to recover for “the breach of an express or implied contract to pay . . . a sum of money fixed by the terms of the contract, or capable of being ascertained therefrom by computation.” But, rather, the purpose is for the cancellation of a deed of trust and for surrender of notes secured thereby upon payment by the plaintiffs to defendant of an amount of indebtedness which plaintiffs alleged they owe to defendant on their notes. Indeed, the judgment is in favor of defendants and against the plaintiffs, and taxes the defendants with the cost. The clerk having undertaken to act in a case in which he has no authority to render a judgment by default final, the purported judgment is subject to attack and may be set aside and vacated. Hence, there is error in the judgment below. The cause will be remanded for further proceedings on the motion of defendants in the light of this opinion and in accordance with law in such cases. We deem it inappropriate at this time to advert to the further contention of appellant that, in so far as the plaintiffs, administrators, are concerned, the action is not maintainable Avithin one year next after their appointment. The judgment below is Reversed.