Miller v. Smith, 169 N.C. 210 (1915)

May 24, 1915 · Supreme Court of North Carolina
169 N.C. 210
C. E. MILLER v. S. M. SMITH et al.

C. E. MILLER v. S. M. SMITH et al.

(Filed 24 May, 1915.)

1. Judgments — Pleadings—Default Final.

Upon failure to answer a complaint within the appointed time, alleging the indebtedness of defendant to plaintiff for goods sold and delivered from time to time within a specified period, according to an attached itemized statement, for which the defendant contracted and agreed to pay at the prices charged, and that a certain sum was due thereon after deducting all proper credits, a judgment by default final will not be set aside.

2. Judgments — Default Final — Excusable Neglect — -Meritorious Defense.

Excusable neglect and a meritorious defense must be shown in order to set aside a judgment by default final properly rendered for the want of an answer.

This is a motion to vacate and set aside a judgment by default final, rendered at July Term, 1914, of Haywood, which, motion was beard by Justice, J., at chambers, on 27 October, 1914, who denied the motion, and the defendant S. M. Smith appealed.

M oigan & Ward, John M. Queen for plaintiff.

J. W. Ferguson, M. Silver for defendants.

BeowN, J.

The complaint alleges that the defendants are indebted to the plaintiff in the sum of $1,387.39, with interest thereon from 15 November, 1913, due for goods, wares, and merchandise sold and delivered, and for board of employees, and for goods, wares, and merchandise sold and delivered to employees on orders from time to time from 1 August, 1913, to 1 March, 1914, which sums for board, merchandise, and orders the said defendants contracted and agreed to pay at the prices charged; that there is due on said account, after deducting all credits to which the defendants are entitled, the sum of $1,387.39, with interest from 15 November, 1913. The language of this complaint is plain and unambiguous. It alleges a distinct promise to pay at the prices charged.

Upon all the authorities, the plaintiff was entitled to a judgment by default final upon the failure to answer within the time required by law. Hartman v. Farior, 95 N. C., 177; Witt v. Long, 93 N. C., 388.

In addition, his Honor not only finds facts which fail to show excusable neglect for failure to file the answer, but he also finds that the defendants have no meritorious or valid defense to the cause of action set out in the complaint. Jeffries v. Aaron, 120 N. C., 169.

The judgment is

Affirmed.