Steed v. Cranford

172 S.E.2d 209 (1970)

7 N.C. App. 378

Ruth Morris STEED v. Carson Clark CRANFORD.

No. 7019SC52.

Court of Appeals of North Carolina.

February 25, 1970.

*211 Ottway Burton, Asheboro, for plaintiff appellant.

Walker, Bell & Ogburn by John N. Ogburn, Jr., Asheboro, for defendant appellee.

CAMPBELL, Judge.

The vehicular collision which is the subject matter of this litigation has given rise to much litigation since its occurrence on 3 September 1965. Another phase of this litigation is contained in the case of Cranford v. Steed, 268 N.C. 595, 151 S.E.2d 206 (1966).

This case presents three questions: (1) Does the Clerk of Superior Court have authority to enter a judgment by default and inquiry in a pending action when there has been filed an unverified answer to a verified complaint? The answer to this is, no. Under such circumstances the Clerk of Superior Court has no authority to enter a judgment until and unless the unverified answer has been stricken. This exact question was determined in the case of Rich v. Norfolk Southern R. R. Co., 244 N.C. 175, 92 S.E.2d 768 (1956) in the following words:

"When the answer filed 10 September, 1954, by all defendants and raising serious issues of fact, remained on file without challenge until 12 April, 1955, neither the plaintiff nor the clerk was at liberty to ignore it even though deficient in respect of verification by the individual defendants. Plaintiff's remedy was by motion, after due notice to the opposing parties or their counsel, to strike out such answer and then for judgment for want of answer. * * *"

The second question presented is, where a judgment by default and inquiry has been entered contrary to the course and practice of the court, does the Judge of the Superior Court have the authority to set it aside? The answer to this question is, yes. Rich v. R. R., supra.

The third question presented is, under the facts and circumstances of this case, did Judge Lupton have the authority to allow the defendant to verify, nunc pro tunc, the answer theretofore filed by him? The answer to this question is, yes. Rich v. R. R., supra.

The order of Judge Lupton is, in all respects,

Affirmed.

PARKER and HEDRICK, JJ., concur.