Jones v. Best, 121 N.C. 154 (1897)

Sept. 1897 · Supreme Court of North Carolina
121 N.C. 154
J. M. JONES v. THEOPHILUS BEST

J. M. JONES v. THEOPHILUS BEST.

Action for Recovery of Land — Failure of Defendant to Answer or File Bond — Judgment by Default.

Where, in an action to recover possession of land, the defendant failed to-file answer or the bond required hy Section 237 of The Code and did not ask leave to answer without giving bond until the time for answering- had expired, it was proper, under Section 390 of The Code, to give judgment against the defendant for possession of the-land, without damages. *

This was a civil action for the recovery of land, in which the plaintiff filed her complaint duly verified at November Term, 1896, of Greeke Superior Court, within the first three days thereof, at which term the defendant was allowed thirty days in which to file his answer and undertaking, or comply with the Statute.

At February Term, 1897, the defendant having failed to answer, the plaintiff moved for judgment for want of an answer. The defendant moved to be allowed, then, to file answer, and to defend without giving bond. The defendant’s motion was denied, and the Court gave the judgment for possession of the land, without damages. The defendant excepted and appealed.

Mr. W. 0. Monroe, for plaintiff.

Mr. G. M. Lindsay, for defendant (appellant).

MONTGOMERY, J.:

This action was instituted for the-possession of a piece of land which the plaintiff alleged was being unlawfully withheld from her by the defendant. No answer was filed, and for want of answer judgment was rendered against the defendant for the possession of the land, without damages. The counsel of the defendant insisted here that, under section 385 of The Code, such judg*155ment was not lawful. Section 390 of The Code, however, provides that in actions like the present one the plaintiff is entitled to judgment for the relief demanded in the complaint unless the defendant files the bond required of him by Section 237 of The Code, or is excused from giving the bond before answering. He did not answer nor file the bond nor ask the Court to file the answer without giving the bond until the time to answer had expired. There is no error.

Affirmed.