Moore v. Mitchell, 61 N.C. 304, 1 Phil. 304 (1867)

June 1867 · Supreme Court of North Carolina

61 N.C. 304, 1 Phil. 304

WILLIAM P. MOORE v. ALEXANDER MITCHELL and THOMAS J. MITCHELL.

In an action sounding in damages, for an unliquidated money demand, a judgment by default final is irregular, and on motion will be set aside.

Motion to set aside a judgment by default final, beard before Mitchell, J., at Spring Term, 1867, of the Superior Court of Craven.

An action of assumpsit, for an unliquidated money demand, was brought by the plaintiff against the defendants to Spring Term, 1866. The cause was continued to Fall Term, when, the defendants not appearing by attorney or in person, judgment final by default was entered against them “for $11,160.49, of which $9,233.39 is principal money.” This judgment was rendered on Saturday afternoon of the term, his Honor having instructed the attorneys of the court to enter judgments in plain cases, and it did not appear that he was on the bench when it was entered. Execution was issued upon the judgment, but was afterwards stayed by a writ of injunction.

The motion to set aside the judgment was allowed, and the plaintiff appealed.

Haughton, for the appellant.

Graham and Strong, contra.

The judgment was contrary to the course and practice of the court. Rev. Code, c. 31, a 57 (2) and a 91; Steph. PL, 105; Uartsfidd v. Jones, 4 Jon., 309; Williams v. Beasley, 13 Ire., 112.

Therefore, being irregular, it should be set aside. Wins-low v. Anderson, 2 Dev. & Bat., 9; Powell v. Joptmg, 2 Jon., 400; Bender v. Askew, 3 Dev., 149; White v. Albertson, ibid, 241; Grumpier v. Governor, 1 Dev., 52; Andrew v. Devane, 2 Hay., 373; Williams v. Beasley, 13 Ire., 112; Keaton v. Banks, 10 Ire., 381; Davis v. Shaver, ante, 18; Sharp v. Pintéis, ante, 34; Whitley v. Black, 2 Hawk, 179; Pettijohn v. Beaseley, 1 Dev. & Bat., 254.

Reade, J.

An irregular judgment may be set aside at a subsequent term. An irregular judgment is one contrary to tbe course and practice of tbe court.

Tbe exigency of tbe writ was to “answer tbe plaintiff of a plea of trespass on tbe case to bis damage fifteen thousand dollars ” — unliquidated damages.

Tbe judgment was: “tbe defendants-failing to appear, judgment final by default is entered against them for $11,160.49, of which $9,233 is principal money.”

At tbe next term tbe defendants moved to set aside tbe judgment, and tbe motion was allowed. Tbe question is, Had tbe court tbe power to set aside tbe judgment ?

Our statute, Rev. Code, c. 31, s. 57, provides that upon failure of tbe defendant to appear and plead, tbe plaintiff may bave judgment by default, which, in actions of debt, shall be final, unless where damages are suggested on tbe roll; and in that case, and in all others not specially provided for, where tbe recovery shall be in damages, a writ of enquiry shall be executed at tbe next term. At tbe appearance term it would bave been regular, and according to -the course and practice of tbe court, to enter judgment by default, (tbe defendant not appearing,) and award a writ of enquiry to be executed at tbe next term, when a jury would pass upon tbe damages, and tbe court render judgment upon the verdict. Here tbe case was not submitted to a jury at all, but the court ascertained tbe damages and gave final judgment. This was certainly irregular, and tbe judgment was properly set aside.

In justice to tbe learned Judge who presided, it is proper to say that under leave given to tbe attornies to enter judgment in plain cases, the plaintiff’s attorney, by mistake, entered up the irregular judgment. By plain cases the Judge doubtless meant such oases as are enumerated in section 91 of said statute.

There is no error.

Per Curiam.