CLARK, C. J., dissenting.
ALLEN, J.
The December and January terms of Lenoir Superior Court were criminal terms, but the statute 1909, ch. 678, permits process to be returnable to and pleadings to be filed at such criminal terms. Revisal, 453, requires the defendant in ejectment to file the undertaking therein specified before he shall be allowed to plead or defend, unless he shall procure leave to defend without bond in the manner prescribed by Revisal, 454. The defendants neither filed the undertaking nor procured leave to defend without giving the same, and the court therefore was within its power in striking out the answer and in granting judgment.
The judgment having been entered during a term of the court, the defendants were fixed with notice, and it was not necessary to serve notice of motion for judgment upon them. Hemphill v. Moore, 104 N.C. 379; Reynolds v. Machine Co., 153 N.C. 342.
The Revisal, sec. 556, provides that, "Judgment by default final may be had upon failure of defendant to answer as follows," and then sets out four subdivisions.
In the first of these subdivisions a verified complaint is required by express terms, and the second refers to the first in such way that the same requirement would be necessary under it.
In the third subdivision there is no reference to a verified complaint, but in lieu thereof the plaintiff is required to make proof of the demand in the complaint.
The fourth subdivision is as follows: "In actions for the recovery of real property, or for the possession thereof, upon the failure of the defendant to file the undertaking required by law, or upon failure of his sureties to justify according to law, unless the defendant (21) is excused from giving such undertaking before answering."
It will be observed that the cause of action set out in the complaint in this action falls within the fourth subdivision, and in it there is no reference to the verification of the pleadings, and judgment is entered because of failure to file bond.
The fact that a verified complaint is mentioned in the first and second subdivisions, that there is a different requirement in the third, and that in the fourth the requirement as to verification is omitted, would seem to lead to the conclusion that the plaintiff is entitled to judgment by default final upon an unverified complaint, upon failure to give bond in an action to recover land.
If the General Assembly had intended that a judgment by default final should not be rendered in any case except upon verified complaint, it would have said, "Judgment by default final may be had on a complaint duly verified on failure of defendant to answer as follows."
If, however, the plaintiff was only entitled to judgment by default and inquiry, the judgment rendered amounts to no more than this, as it simply adjudicates that the plaintiff is the owner of the land, and directs the tax deed to be canceled, and no inquiry as to damages is ordered.
In Blow v. Joyner, 156 N.C. 140, it is held that a judgment by default and inquiry concludes as to all issuable facts properly pleaded, and that evidence in bar of plaintiff's right of action is not admissible on the inquiry as to damages, and that such a judgment establishes the cause of action set out in the complaint.
If so, a judgment by default and inquiry upon the complaint in this action would declare the plaintiff to be the owner in fee of the land in controversy, and would entitle him to an inquiry as to damages; and the judgment rendered does less than this, as the clause as to the inquiry is omitted and the plaintiff recovers no damages.
Affirmed.