Booker v. Porth

161 S.E.2d 767 (1968)

1 N.C. App. 434

James J. BOOKER v. Robert E. PORTH and William R. Porth.

No. 68SC124.

Court of Appeals of North Carolina.

June 19, 1968.

*768 James J. Booker, pro se.

Womble, Carlyle, Sandridge & Rice by Charles F. Vance, Jr., Winston-Salem, attorneys for defendants-appellees.

BROCK, Judge.

In this case we will proceed to the merits of the appeal without comment upon the very serious questions of whether plaintiff's case on appeal was served upon defendant in time, and whether plaintiff's record on appeal was docketed in this Court within the time prescribed by our rules.

It is abundantly clear from a reading of the complaint that plaintiff seeks by this action to recover personal judgment against the defendants for the payment of money. In his "Notice of Lis Pendens" plaintiff alleges: "The object of said action is to recover upon an express contract for payment of attorney's fees * * *"

G.S. § 1-116, authorizing the filing of a Notice of Lis Pendens, does not apply to an action the purpose of which is to secure a personal judgment for the payment of money even though such a judgment, if obtained and properly docketed, is a lien upon land of the defendant. Cutter v. Realty Co., 265 N.C. 664, 144 S.E.2d 882. The "Notice of Lis Pendens" in this case was not authorized and Judge Martin was correct in canceling and removing the same from the records.

The plaintiff's complaint consists of thirty-five paragraphs of detailed allegations and will not be reproduced here. Plaintiff details his professional services to the defendant Robert E. Porth in preparation, trial, appeal, and in collateral matters. However, nowhere does he allege a contract for the payment of a total specific sum for his professional services and expenses; nor does he allege a contract agreed to by the parties from which contract a total specific sum could be computed. At best he alleges a contract for services and expenses, a determination of the amount of which would require evidence and findings of fact, even in the absence of an answer denying the claim. The statute provides for judgment by default final "where 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 or sums of money fixed by the terms of the contract, or capable of being ascertained therefrom by computation." (Emphasis added.) G.S. § 1-211. There was no certainty of total amount to be paid under the contract alleged by plaintiff, therefore, upon failure of answer by defendant, plaintiff would be entitled, at most, to judgment by default and inquiry. G.S. § 1-212. The judgment by default final was irregularly and improvidently entered in this case by the Assistant Clerk, and the Clerk had authority to vacate the same upon motion in the cause. Cook v. Bradsher, 219 N.C. 10, 12 S.E.2d 690; Bailey v. Davis, 231 N.C. 86, 55 S.E.2d 919; 5 Strong, N.C. Index 2d, Judgments, § 19, *769 P. 40. Judge Martin was correct in affirming the Clerk's action.

It appears that both defendants in apt time, properly filed a joint answer verified by one of the defendants in accordance with G.S. § 1-145; but, in any event, after the judgment by default final had been vacated, Judge Martin allowed the defendant William R. Porth to verify the answer. This he was authorized to do in the exercise of his discretion. Rich v. Norfolk Southern R. R., 244 N.C. 175, 92 S.E.2d 768. No abuse of discretion is shown. The plaintiff has not been damaged; his action is pending and stands ready for trial.

Affirmed.

MALLARD, C. J., and PARKER, J., concur.