North American Acceptance Corp. v. Samuels

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181 S.E.2d 794 (1971)

11 N.C. App. 504


No. 7121DC377.

Court of Appeals of North Carolina.

June 23, 1971.

*797 Hollowell & Ragsdale, P.A. by William L. Ragsdale, Raleigh, for plaintiff appellee.

Vernon Hart, Winston-Salem, for defendant appellant.

MALLARD, Chief Judge.

Neither appellant nor appellee filed brief within the time prescribed by the rules. However, both have filed briefs and we therefore consider the case.

The parties stipulated that "for purposes of this record of appeal it shall not be necessary to set out the Summons." The certificate of service of the summons and complaint is not in the record. However, in the "Entry of Default Judgment" and in defendant's brief, it is asserted that the summons and complaint were served on the defendant on 15 October 1970. We assume, therefore, that the summons and complaint were lawfully served.

The defendant's only assignment of error is as follows:

"1. THE ENTRY OF JUDGMENT DATED JNAUARY (sic) 14, 1971 WHEREIN THE WRIT OF POSSESSION WAS ORDERED. (R p 4) The Presiding Judge erred in signing said judgment in that: a. The complaint alleges an agreement existed between Plaintiff/Appellee and Defendant/Appellant and yet said agreement was never filed with the Court and has never been made a part of the record nor has the Court made findings setting forth the contents of said agreement. b. The complaint alleges that said agreement between the parties was one of vendor/vendee wherein Plaintiff/Appellee was selling real property to Defendant/Appellant. c. The complaint prays for relief in the form of summary ejectment of the Defendant/Appellant from the real property allegedly being purchased by Defendant/Appellant from the Plaintiff/Appellee. d. North Carolina General Statute 42-26 expressly provides that an action of summary ejectment only lies when the relationship of Landlord/Tenant exists between the parties. No finding has been recorded setting forth that such a relationship existed between Plaintiff/Appellee and Defendant/Appellant but to the contrary the record shows their relationship to be that of Vendor-Vendee. e. The Court was without authority on the record to enter judgment for summary ejectment."

The assignment of error does not mention the order dated 1 February 1971 denying the defendant's motion to set aside the default judgment. The notice of appeal was dated and filed 29 January 1971, more than ten days after the rendition of the judgment dated 14 January 1971, and no notice of appeal was served on the plaintiff. The appeal from the entry of the judgment dated 14 January 1971 should be dismissed because timely notice was not given nor properly served. See Brady v. Town of Chapel Hill, 277 N.C. 720, 178 S.E.2d 446 (1971); G.S. §§ 1-279, 1-280.

We hold that the allegations of the verified complaint were sufficiently particular as required by G.S. § 1A-1, Rule 8(a) [see Sutton v. Duke, 277 N.C. 94, 176 S.E.2d 161 (1970)] to give the defendant notice of the transactions and occurrences intended to be proved and the type of relief demanded.

*798 Under G.S. § 1A-1, Rule 8(d), allegations in pleadings are admitted when not denied in a responsive pleading if a responsive pleading is required. In this case a responsive pleading was required, and the defendant did not file an answer denying the allegations of the complaint. Therefore under the rule, the allegations were deemed admitted.

In 3 Barron & Holtzoff, Fed.Prac. & Proc. (Wright Ed.), § 1216, it is stated:

"* * * If the default is established, the defendant has no further standing to contest the merits of plaintiff's right to recover. His only recourse is to show good cause for setting aside the default and, failing that, to contest the amount of the recovery."

Although possession of the described real property and a money judgment were demanded in the complaint, the judge, after the entry of default by the clerk under G.S. § 1A-1, Rule 55(a), entered default judgment under G.S. § 1A-1, Rule 55(b)(2) for the recovery of the possession of the real property but did not include therein a judgment for the recovery of a sum of money. The defendant, by failing to answer, admitted that plaintiff was entitled to the possession of the real property. G.S. § 1A-1, Rule 8(d). The default was thus established.

In 3 Barron & Holtzoff, Fed.Prac. & Proc. (Wright Ed.), § 1217, the federal rule with respect to setting aside a default judgment is as follows:

"A motion to set aside a default or a judgment by default is addressed to the discretion of the court, and an adequate basis for the motion must be shown. In exercising this discretion the court will be guided by the fact that default judgments are not favored in the law. Courts exist to do justice, and are properly reluctant to lend their processes to the enforcement of an unjust judgment. At the same time, the rules which require responsive pleadings within a limited time serve important social goals, and a party should not be permitted to flout them with impunity. In balancing these policies the court should not reopen a default judgment merely because the party in default requests it, but should require the party to show both that there was a good reason for the default and that he has a meritorious defense to the action. However, the fact that defendant has a meritorious defense does not justify setting the judgment aside if no good excuse for the default is shown. The merits of the controversy will not be considered unless an adequate reason for the default is shown."

Under our Rules of Civil Procedure, the determination of whether an adequate basis exists for setting aside the entry of default and the judgment by default rests in the sound discretion of the trial judge. See Whaley v. Rhodes, 10 N. C.App. 109, 177 S.E.2d 735 (1970). On the record before us the defendant did not offer any evidence showing a good reason for her default upon which the judge could have set aside the entry of default. Neither was there an adequate basis shown for the judge to have set aside the judgment by default on the grounds of mistake, inadvertence, surprise, excusable neglect or meritorious defense. The unverified motion of the defendant may not be considered in this case as a showing of good cause or evidence of mistake, inadvertence, surprise, excusable neglect or a meritorious defense. The unverified motion did not prove the matters alleged therein and is not evidence thereof. We hold that the judge did not abuse her discretion in failing to set aside the entry of default or the judgment by default.

Under the facts in this case, it was proper for the clerk on 14 January 1971 to enter default under G.S. § 1A-1, Rule 55(a), and for the judge to enter the default judgment under Rule 55(b)(2) on the same date.

*799 The default judgment dated 14 January 1971 and the order denying defendant's motion to set aside the default judgment "(Entered January 28, 1971signed February 1, 1971)" are affirmed.


PARKER and VAUGHN, JJ., concur.

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