29 S.E. 64 | N.C. | 1898
The summons was served in December, 1888, and a verified complaint filed in March, 1889. At Spring Term, 1892, leave was granted to the defendants to reinstate their answer in 60 days. At August Term, 1893, no answer or demurrer having been filed, judgment by default final was taken for the recovery of the realty, no damages being asked. The defendants moved at December Term, 1893, to set aside this judgment on the ground of excusable neglect, alleging that their counsel drew up the answer and mailed it to them, but, having changed their postoffice, the latter did not reach them until eleven *63
months after it was mailed. The judge did not find the facts specifically as he should have done. Winborne v. Johnson,
Further, it does not appear, and is not averred, that the defendants filed the bond required by section 237 of the Code, or were excused from filing it, and the judgment by default was authorized by The Code, section 390 (Jones v. Best,
The verified complaint, however, was for an undivided half interest in the premises, and the judgment should have been that the plaintiff be let into possession as tenant in common with the defendants, and not for the recovery of the whole tract. The judgment should be reformed below to conform to the complaint, but the order setting it aside altogether must be
Reversed.
Cited: Norton v. McLaurin,
(101)