Piney Mountain Prop. v. National Theatre Sup. Co.

Annotate this Case

169 S.E.2d 465 (1969)

6 N.C. App. 191

PINEY MOUNTAIN PROPERTIES v. NATIONAL THEATRE SUPPLY COMPANY, a Corporation; Clark C. Totherow and John R. Ingle, Substitute Trustees.

No. 6928SC193.

Court of Appeals of North Carolina.

September 17, 1969.

*466 Van Winkle, Buck, Wall, Starnes & Hyde, by Herbert L. Hyde, and Bennett, Kelly & Long, by Robert B. Long, Jr., Asheville, for plaintiff appellee.

McGuire, Bailey & Wood, by Richard A. Wood, Jr., and James T. Rusher, Asheville, and Myers, Sedberry & Collie, by Charles T. Myers, Charlotte, for defendant appellant.

BROCK, Judge.

There is a distinct difference in a judgment by default final as authorized by G.S. § 1-211, and a judgment by default and inquiry as authorized by G.S. § 1-212. DeHoff v. Black, 206 N.C. 687, 175 S.E. 179. A judgment by default final establishes the matters adjudicated, if supported by verified allegations in the complaint, and concludes by way of estoppel. DeHoff v. Black, supra. Judgment by default final, where there is no appeal or motion to set aside, concludes the controversy between plaintiff and defaulting defendant, and further proceedings between plaintiff and other defendants cannot adjudicate rights between plaintiff and the defaulting defendant against whom final judgment already had been entered.

*467 Also, it is equally clear that default final judgment against Mohow, Inc., did not adjudicate any rights between plaintiff and the answering defendants. The judgment by default final against Mohow, Inc., in no way prejudiced the rights of the answering defendants in their defense against plaintiff's allegations.

We adhere to our decision as filed 30 April 1969 (reported 4 N.C.App. 334, 166 S.E.2d 840).

CAMPBELL and MORRIS, JJ., concur.