JUNGE v. MacKNIGHT

MONTGOMERY, J.

The plaintiff filed his complaint at the May Term, 1903, of the Superior Court of Moore County and alleged therein that he was the owner in fee and in the possession of a certain lot of land described in the complaint, and that the defendant, through an alleged deed of the sheriff of the county made under an execution, had cast a cloud upon the plaintiff's title. The prayer for judgment was that the deed from the sheriff to the defendant be declared void and canceled. The defendant having filed no answer a judgment by (106) default final was entered up against him. In that judgment it was decreed that the title to the property was in plaintiff, that the deed from the defendant to the sheriff was of no effect and void and that it be delivered up and canceled. At the next term of the Superior Court the defendant, after having given the plaintiff proper notice, made a motion in writing to set aside the judgment by default final on the ground that it was irregular, and because the summons was not served on the defendant ten days before the first day of the term of the court at which the judgment was entered. His Honor refused the motion on the ground that the facts as he found them showed that the summons was served on the defendant ten days before the beginning of the term of the court. We are of the opinion that the judgment should have been set aside for irregularity. Judgments by default final can be rendered in this State only in the cases mentioned in section 385 of The Code, and this case does not fall under that section. In section 386 of The Code it is provided that in all other actions, except those mentioned in 385, when the defendant shall fail to answer, and upon a like proof, judgment by default and inquiry may be had at the return term, and inquiry shall be had at the next succeeding term.

In the same section (386) it is further provided that, except when a reference may be ordered to state a long account, the inquiry shall be executed by a jury unless by consent the Court is to try the facts as well as the law. The clear meaning of section 386 of The Code is that in all actions except those embraced in section 385 of The Code a plaintiff cannot recover a judgment by default final upon the failure of the defendant to answer until he has proved all the material allegations of his complaint.

In Georgia, there are special exceptions, as with us, in which (107) judgment by default final may be had, and we find numerous cases in the court of that State in which it is held that a plaintiff cannot take a judgment by default upon the failure of the defendant to file an answer until he has proved all the material allegations of his complaint, and in Sannes v. Sayne, 78 Ga. 468, the Court said: "The defendant while in default may resist passively whatever is brought to attack him, but cannot make a counter-attack. Though not allowed to return the fire he is not obliged to run but may stand until he is shot down. Exceptions to the general rule are made by statute, but this case is within the relief itself." And in regard to the plaintiff, the Court said: "Whether, on matters of fact, he is before the jury or before the judge can make no difference in his burden. He must produce enough evidence to manifest the truth of every material allegation. There is a trial to that extent, though there be no issue in the record. There must be an examination of evidence and a determination of such facts as the declaration necessarily involves. The law itself, by requiring evidence, puts the truth of these facts in issue, and keeps up the issue until the facts are established." If this action had been for the recovery of or for the possession of the land, the defendant having failed to answer and to file the undertaking required by section 237 of The Code, judgment by default final might have been rendered against him under the provisions of section 390 of The Code. Jones v. Best, 121 N.C. 154. The last-mentioned section of The Code furnishes the only additional exception to the rule laid down in section 386.

Reversed.