Kassler v. . Tinsley

153 S.E. 411 | N.C. | 1930

Civil action to recover on two promissory notes. Summons issued and complaint filed 22 July, 1927. Defendants answered 27 July, 1927, denied liability and set up a counterclaim for $6,800.

The answer of defendants, containing said counterclaim, was not served on plaintiff or his attorneys (so stated in the agreed statement of case on appeal), and no answer, demurrer, or reply to the counterclaim was filed by the plaintiff; whereupon on 12 September, 1927, judgment by default and inquiry was entered against the plaintiff, and in favor of defendants, on said counterclaim.

Thereafter, at the December Term, 1929, Transylvania Superior Court, plaintiff moved to set aside the judgment by default and inquiry previously entered on the counterclaim, on the ground that no copy of the answer containing said counterclaim, was ever served on the plaintiff or his attorneys, and therefore, under chapter 18, Public Laws, Extra Session, 1924, such counterclaim is deemed denied. Motion disallowed, and plaintiff appeals. after stating the case: It was held in Lumber Co. v. Welch, 197 N.C. 249,148 S.E. 250, construing chapter 18, Public Laws, Extra Session, 1924, that, unless a copy of the answer containing a counterclaim is served on the plaintiff or his attorney, the allegations going to make up such counterclaim are to be considered and dealt with as denied. Hence, under authority of the Welch case, it would seem that the plaintiff's motion is well founded.

Reversed.