Hill v. Huffines Hotel Co.

Adams, J. The trial judge found the facts to be that the defendant had been duly served with summons and had not shown excusable neglect or a meritorious defense, and that the damages awarded were not excessive. He set aside the verdict, not as a matter of discretion, but for the assigned reason that the trial had not been conducted in accordance with the regular and orderly practice of the court. He held that the only course open to the plaintiff was to obtain a judgment by default and inquiry and to prosecute the inquiry at a succeeding term of the court; and the sole question to be decided is whether there was error in this ruling. The summons was issued 18 November, 1922, several months after chapter 92 of the Public Laws, Extra Session, 1921, had gone into effect. The provisions of this act in reference to process and pleadings differ materially from the statutes previously in force. Prior to the act of 1919 (Public Laws, eh. 304) the practice, concisely stated, was as follows: the summons was returnable to a regular term of the Superior Court to be held in the county from which it was issued (Revisal of 1905, secs. 430, 434, 435); the complaint was to be filed in the clerk’s office on or before the third day of the term to which the action was brought, and at the same term the defendant was to appear and demur or answer (ibid., sec. 473) ; if the defendant failed to appear the plaintiff, if not entitled to a judgment by default final, was authorized to take a judgment by default and inquiry. The inquiry was to be executed at a succeeding term for the obvious reason, if for no other, that the defendant’s right to answer precluded such inquiry at the return term. . In the act of 1921, supra, it is provided that a clerk of the Superior Court may enter a judgment by default and inquiry, and further: “If no answer is filed the plaintiff shall be entitled to judgment by default final or default and inquiry as authorized by O. S., 595, 596, and 597 and all present or future amendments of the said sections; . . . and in all cases of judgment by default and inquiry rendered by the clerk, the clerk shall docket the case in the Superior Court at term time for trial upon the issues raised before a jury, or otherwise as provided by law, *589 and all judgments by default and inquiry shall be of the same force and effect as if rendered in term and before a judge of the Superior Court.” P. L., 1921, Ex. Ses., cb. 92, sec. 1 (9,12). As we understand the defendant it insists that a judgment by default and inquiry should have been entered by the clerk and the cause should then have been transferred to the Superior Court docket for the award of damages. The position assumes, we take it, that the clerk had the exclusive power to render such judgment and that the case when heard' was not properly before the judge. When the Legislature empowered clerks to enter judgments by default and inquiry as indicated in the sections referred to, it no doubt intended thereby to expedite litigation. This provision was in the nature of an enabling act and we apprehend was never intended to deprive the Superior Court in term of its jurisdiction to render judgments by default final or by default and inquiry, and it cannot reasonably be construed as effective for such purpose. The statute further provides that when pleadings are made up and issues are joined the clerk shall forthwith transmit the original papers in the cause to the court at term for trial upon the issues, when the ease shall be proceeded with according to the course and practice of the court. Subsection 13. If this statute were interpreted as providing that original papers can be transferred to the docket for trial in term only after an answer is filed, some difficulty might be encountered in assessing damages in cases similar to the one under consideration. A judgment by default and inquiry admits that the plaintiff has a cause of action and is entitled to nominal damages, but the burden of proving any damages beyond such as are nominal still rests upon the plaintiffs. Osborn v. Leach, 133 N. C., 428, 432; Stockton v. Mining Co., 144 N. C., 595, 600. Though the cause of action be admitted the damages must be determined by the jury, and for this purpose the case must go to the trial docket. In Brown v. Rhinehart, 112 N. C., 772, 776, McRae, J., said: “We think the case was properly placed upon the civil issue docket, although no issues had been joined, for not only issues of fact joined upon the pleadings, but also all other matters for hearing before the judge at a regular term of the court, are to be put upon this docket.” The case before us was put upon the civil issue docket and remained there more than fifteen months, and was then put upon the calendar and duly called for trial. The contention that the case should be treated as if before the clerk and not before the judge cannot, therefore, be upheld. The question next to be considered is whether the lower court committed error in submitting the issues to the jury. In support of its contention that there was error the defendant relies on Brown v. Rhinehart, supra. In that case the summons was issued 21 July, 1891, was made returnable to the August term, and was served more than ten days *590 prior thereto; but no complaint was filed. At the next (December) term the plaintiff filed bis complaint, but took no further action. At the March Term, 1892, the case was put upon the calendar and when it was reached and before the jury was empaneled the plaintiff made a material amendment to his complaint. Issues were submitted to and answered by the jury. A final judgment was entered upon the verdict. At the August Term of 1892 one of the defendants moved to set aside the judgment on the ground of irregularity. This Court held that the term at which the complaint was amended was to be regarded as the return term, and as the defendant had the right to answer during the term the issues were improperly submitted to the jury. True, McRae, J., said: “We nowhere find that the inquiry may be executed at the same term as that at which judgment by default was rendered, unless it is expressly allowed to be done by statute”; but the learned Justice evidently referred either to the term to which the summons is returnable or to a term which, as in case of amendment or failure to file a complaint, should be treated as the return term. Roberts v. Allman, 106 N. C., 391. When the summons is served and the complaint duly filed, and several terms intervene before the case is called for trial, what satisfactory reason can be given for declaring a judgment fatally irregular simply because an issue as to the cause of action has been answered by the jury? If an answer denying the complaint had been filed the same issues would have been raised. Shall the defendant’s refusal or negligent failure to file an answer place him in a more favorable position than he would have occupied if he had answered the complaint and raised the very issues which were submitted to the jury? Instead of submitting the two issues to the jury the plaintiff could have taken a judgment by default and inquiry and called for an assessment of damages at the succeeding term; but as this was not the return term the course pursued was at most a technical irregularity which did not affect the merits. By submitting the issues — upon each of which the judge charged the jury “fully and at length”' — the plaintiff assumed, not only the risk of an adverse verdict on the first issue, but a burden not imposed by the law. We are unable to see that the defendant has thereby suffered material prejudice. It should be noted, too, that the lower court held that the defendant has no meritorious defense to the plaintiff’s -action. Ordinarily a judgment, even if irregular, will not be set aside unless there is a “reasonably probable show of merits.” Gough v. Bell, 180 N. C., 268, 271; Rawls v. Henries, 172 N. C., 216; Glisson v. Glisson, 153 N. C., 185. The plaintiff is entitled to a judgment upon the verdict and the order setting aside the verdict is therefore Beversed.