Miller v. . Curl, 77 S.E. 952

Miller v. . Curl

77 S.E. 952 | N.C. | 1913

This is an action brought to February Term, 1912, upon a note. The complaint was verified by the attorney of the plaintiff as follows: "That the facts set forth in the foregoing complaint as of his own knowledge are true, and that those stated on information and belief he believes to be true. Deponent further says: That this action is based on a written instrument for the payment of money, and that said instrument is in his possession, and he therefore makes this verification pursuant to the provisions of section 490 of the Revisal of 1905." Judgment by default final was rendered in favor of the plaintiff at the return term. Defendant moved to set it aside at November Term, 1912, upon a notice of the motion served 15 June, 1912, and in it assigned three grounds:

1. For that the said judgment was rendered at the return term of the summons issued in said action and upon a complaint filed by the plaintiff, which is not properly verified.

2. For that said judgment was rendered for an amount considerably in excess of the amount due by the defendants to the plaintiff, and includes a commission of 10 per cent as attorney's fees.

3. For that the defendant A. R. Davis has discovered, since the rendition of said judgment, that said commission of 10 per cent as attorney's fees is included in the amount of said judgment.

The court refused to vacate the judgment, but amended it by striking therefrom an allowance of 10 per cent upon the amount of the note for attorney's fees, based upon a like stipulation in the note, and as thus amended the judgment was allowed to stand. There was no affidavit or other proof showing merit in the application. Defendant appealed. The statute requires that the verification shall state, in substance, that the pleading itself, in its *3 entirety, is true to the knowledge of the person making it, except as to matters therein stated on information and belief, and as to those matters, he believes it to be true. This is so where a party to the proceeding makes the verification, but it may also be made by an agent or attorney, if the action or defense be founded upon a written instrument for the payment of money only, which is in the possession of the agent or attorney, or if all the material allegations of the pleading be within his personal knowledge; but when the pleading is verified by an agent or attorney, he must set forth in the affidavit his knowledge or the grounds of his belief on the subject, and the reason why it is not made by the party. Revisal, secs. 488, 489 and 490. The object of the statute is to give the pleader a convenient substitute for the old bill of discovery in equity, and to eliminate all issues of fact that the parties are not willing to raise under the sanctity of an oath. Griffin v.Light Co., 111 N.C. 434; Phifer v. Insurance Co., 123 N.C. 410. It is also reasonably necessary for the protection of the other party in certain cases. This provision of the statute should, therefore, be at least substantially complied with. The verification in this case (4) is defective in its very first averment. Phifer v. Insurance Co.,supra; Carroll v. McMillan, 133 N.C. 140; Payne v. Boyd, 125 N.C. 499. It would be useless to discuss this part of the verification, as the cases which we have cited present the identical question here raised, and are conclusive in their reasoning, to which we simply refer. There is another defect noticeable. The attorney does not state why the verification was not made by one of the plaintiffs, and there is nothing stated from which we can fairly infer the reason for this failure by them to verify their own pleading. Revisal, sec. 490; Banks v.Manufacturing Co., 108 N.C. 282. The judgment, therefore, should not have been rendered. Hammerslaugh v. Farrior, 95 N.C. 135. The judgment, however, was not void, but merely irregular. Cowan v.Cunningham, 146 N.C. 453. It was held in that case: "If it should be conceded in such case that a judgment by default final is not allowable on an unverified complaint, the defect only amounts to an irregularity, and such judgments are not set aside as a matter of right in the party affected, but in the sound legal discretion of the court. It is always required that a party claiming to be injured should show that some substantial right has been prejudiced, and he must proceed with proper diligence and within a reasonable time," citing Becton v. Dunn,137 N.C. 562. There is another important consideration. Where a party moves to set aside a judgment for irregularity or excusable neglect, he should make it appear that he has a meritorious defense. This *4 must be taken as finally settled. Turner v. Machine Co., 133 N.C. 381;Currie v. Mining Co., 157 N.C. 209; Scott v. Life Association,137 N.C. 516; Minton v. Hughes, 158 N.C. 587; Norton v. McLaurin,125 N.C. 185; Leduc v. Slocomb, 124 N.C. 347. The reason for this practice is clearly stated by Justice Ruffin in Mauney v. Gidney,88 N.C. 200: "In the first place, and contrary to all the authorities, the defendants omit to set out in their application any defense whatsoever which they then had, or which it is conceived they could now make to the action; and for aught the Court can tell, looking to their allegations, it may be called upon, after setting aside the judgment, (5) to render just such another between the same parties. To avoid engaging in so vain a thing, the courts have uniformly required in all such applications that the parties should, at least, set forth such a case as prima facie amounted to a valid defense," citing English v.English, 87 N.C. 497; Jarman v. Saunders, 64 N.C. 367. And also by Chief Justice Shepherd, in Everett v. Reynolds, 114 N.C. 366: "Generally a judgment will be set aside only when the irregularity has not been waived or cured, and has been or may be such as has worked, or may yet work, serious injury or prejudice to the party complaining, interested in it, or when the judgment is void," citing Williamson v.Hartman, 92 N.C. 236; Peoples v. Norwood, 94 N.C. 167; 1 Freeman on Judgments, sec. 102. The subject is fully reviewed, the same reason substantially given and the same conclusion reached in Scott v.Life Association, 137 N.C. 516; and in Turner v. Machine Co.,133 N.C. 381, we held that merits must be shown upon such a motion, citing from other jurisdictions, Insurance Co. v. Rodecker, 47 Iowa 162;Edwards v. Jamesville, 14 Wis. 26. In the recent case of Curriev. Mining Co., 157 N.C. 209, Justice Allen says: "An irregular judgment is one rendered contrary to the course and practice of the courts. and may be set aside within a reasonable time, and upon showing a meritorious defense."

In this case, the defendant has received full credit for the attorney's fee, which he alleges was wrongfully charged against him and included in the judgment in the legally questionable, but seemingly just, exercise of the court's discretion, as the inclusion of that amount was merely erroneous, and the judgment, in that respect, could be revised only by appeal. But the ruling was in defendant's favor, the plaintiff not complaining of it. It is, therefore, not before us for review. Our conclusion is that there was no error in the refusal of the defendant's motion.

No error. *5