Tbe appellee filed no brief in tbis Court-but lodged a motion to dismiss tbe appeal on tbe ground that tbe appellants failed to make up and serve tbe ease on appeal on tbe appellee or bis counsel.
If an error relied on by an appellant is presented by tbe record proper, as it is on tbe present record, no case on appeal is required. Tbe record constitutes tbe ease to be filed in tbis Court and tbe appellant is not required to serve it on tbe appellee or bis counsel. Tbe motion is without merit and is denied. Bishop v. Black, 233 N.C. 333, 64 S.E. 2d 167; Reece v. Reece, 231 N.C. 321, 56 S.E. 2d 641; Russos v. Bailey, 228 N.C. 783, 47 S.E. 2d 22; Privette v. Allen, 227 N.C. 164, 41 S.E. 2d 364; Bessemer Co. v. Hardware Co., 171 N.C. 728, 88 S.E. 867; Commissioners v. Scales, 171 N.C. 523, 88 S.E. 868.
In an action for damages for trespass upon realty in wbicb there is no allegation to tbe effect that tbe defendant is in actual possession of tbe property or any part thereof, tbe defendant is not required to post bond before answering, as required by G.S. 1-111 and G.S. 1-211, subsection 4. Hodges v. Hodges, 227 N.C. 334, 42 S.E. 2d 82. Furthermore, there is no allegation in tbe complaint that tbe defendants or any of them claim title to plaintiffs’ lands, as described in tbe complaint, or any part thereof. Hence, that portion of tbe judgment declaring tbe plaintiffs to be tbe owners in fee simple and entitled to tbe possession of tbe lands described in tbe complaint, in fact constitutes no more than a finding as to matters alleged in tbe complaint as a basis for plaintiffs’ right of recovery.
Tbe judgment by default and inquiry established plaintiffs’ cause of action as alleged in their complaint and their right to recover of tbe defendant G. "W. Chandler at least nominal damages. Consequently, tbe plaintiffs are entitled to such damages as flow from or arise out of said cause of action. Only tbe amount of these damages, to be ascertained by a jury, is left open for inquiry. G.S. 1-212; DeHoff v. Black, 206 N.C. 687, 175 S.E. 179; Mitchell v. Ahoskie, 190 N.C. 235, 129 S.E. 626; Armstrong v. Asbury, 170 N.C. 160, 86 S.E. 1038; Plumbing Co. v. Hotel Co., 168 N.C. 577, 84 S.E. 1008; Junge v. MacKnight, 137 N.C. 285, 49 S.E. 474; McLeod v. Nimocks, 122 N.C. 437, 29 S.E. 577. Therefore, tbe movant was not entitled-to have tbe judgment set aside in tbe absence of a showing by him and a finding by tbe court that bis neglect was excusable and that be has a meritorious defense to plaintiffs’ cause of action. Stephens v. Childers, 236 N.C. 348, 72 S.E. 2d 849; Perkins v. Sykes, 233 N.C. 147, 63 S.E. 2d 133; Hanford v. McSwain, 230 N.C. 229, 53 S.E. 2d 84; Whitaker v. Raines, 226 N.C. 526, 39 S.E. 2d 266; Johnson v. Sidbury, 225 N.C. 208, 34 S.E. 2d 67.
*404Since there is no showing or finding in the court below that the appel-lee’s failure to answer was due to excusable neglect and that he has a meritorious defense, it was error to strike out the default judgment, and the order to that effect is set aside and the cause remanded for further proceedings as provided by law. Presnell v. Beshears, 227 N.C. 279, 41 S.E. 2d 835.