Hasty v. Carpenter , 51 N.C. App. 333 ( 1981 )

276 S.E.2d 513 (1981)

Nellie HASTY, Executrix of Martha B. Turner, Deceased
v.
Nancy Sharon CARPENTER.

No. 8011SC440.

Court of Appeals of North Carolina.

April 7, 1981.

J. W. Hoyle, Kenneth R. Hoyle and Jimmy L. Love, Sanford, for plaintiff-appellee.

James F. Penny, Jr., Lillington, for defendant-appellant.

WHICHARD, Judge.

This court has held that defendant was served with summons and a complaint in this action, and thus that the trial court had personal jurisdiction over her. Hasty v. Carpenter, 40 N.C.App. 261, 252 S.E.2d 274, review denied, 297 N.C. 453, 256 S.E.2d 806 (1979). The court in that appeal fixed 22 November 1975 as the date on which defendant was served with the complaint for the purpose of calculating the time within which defendant was required to file answer or other responsive pleading. North Carolina Rules of Civil Procedure, Rule 12(a)(1) requires that a defendant serve an answer "within 30 days after service of the summons and complaint upon him." The record contains no timely motions for or orders granting an extension of time to file answer. Thus, when defendant on 29 July 1977 "specially appeared" and filed her motion to dismiss for lack of in personam jurisdiction and insufficiency of service of process she was and had been for a considerable period in default for failure to answer within the time limits prescribed by Rule 12.

By this failure to answer, defendant admitted the averments of plaintiff's complaint. Chief Judge Mallard's statement in Acceptance Corp. v. Samuels, 11 N.C.App. 504, 181 S.E.2d 794 (1971), is pertinent here:

Under G.S. 1A-1, Rule 8(d), allegations in pleadings are admitted when not denied in a responsive pleading if a responsive pleading is required. In this case a responsive pleading was required, and the defendant did not file an answer denying the allegations of the complaint. Therefore under the rule, the allegations were deemed admitted.

Acceptance Corp., 11 N.C.App. at 509, 181 S.E.2d at 798. Thus, at the time defendant filed her motion to dismiss for lack of jurisdiction, the allegations of plaintiff's complaint were deemed admitted by defendant's failure to answer within the prescribed time limitations.

At this juncture defendant sought to defeat plaintiff's action by filing a motion to dismiss for lack of jurisdiction. This attempt failed, this court holding in the prior appeal that the trial court did have jurisdiction over defendant. Hasty, 40 N.C. App. 261, 252 S.E.2d 274. Upon the failure of this attempt, the case reverted to the trial court in its pre-appeal posture, viz., one in which the allegations of plaintiff's complaint were deemed admitted by defendant's failure timely to answer.

Rule 55(a) provides:

Entry. When a party against whom affirmative relief is sought has failed to answer or is otherwise subject to default judgment as provided by these rules or by statute and that fact is made to appear by affidavit, motion of attorney for the plaintiff or otherwise, the clerk shall enter his default.

G.S. 1A-1, Rule 55(a). Plaintiff's 15 August 1977 motion for entry of default pursuant to this rule stated that defendant had failed to plead. The affidavit by one of plaintiff's attorneys filed with the motion stated that defendant had been served with the complaint in the action and had failed to answer or otherwise defend within the requisite time limit. Thus, plaintiff adequately informed the court, as required by Rule 55(a), of defendant's failure to answer; and entry of default was appropriate. Indeed, once grounds for entry of default have been established, entry is a "ministerial duty" generally performed by the clerk. See Miller v. Miller, 24 N.C.App. 319, 210 S.E.2d 438 (1974); Whaley v. Rhodes, 10 N.C.App. 109, 177 S.E.2d 735 (1970); 2 McIntosh, N.C. Practice 2d § 1668 (Supp. 1970).

Here, however, the court rather than the clerk entered defendant's default. This court has stated with regard to entry of default that "[t]he judge of the superior court is in no way deprived of jurisdiction simply because the clerk, in certain instances, has concurrent jurisdiction." Highfill v. Williamson, 19 N.C.App. 523, 532, 199 S.E.2d 469, 474 (1973). Thus Judge Lee clearly had jurisdiction to enter defendant's default on 1 October 1979; and default having been established by defendant's failure timely to serve answer, the entry was appropriate.

Following the 1 October 1979 entry of default, a hearing was held on plaintiff's motion for judgment by default. The record indicates that defendant at that hearing moved in open court "for dismissal." The only motion which would have benefitted defendant at this juncture was a motion to set aside the entry of default. Such a motion may be granted "[f]or good cause shown." G.S. 1A-1, Rule 55(d). "The determination as to whether good cause exists to vacate an entry of default is addressed to the sound discretion of the trial judge." Frye v. Wiles, 33 N.C.App. 581, 583, 235 S.E.2d 889, 891 (1977). Assuming, arguendo only, that defendant's motion "for dismissal" was in effect a motion to set aside the entry of default, the record discloses no basis for finding an abuse of discretion by the trial judge in declining to grant the motion.

The trial court having thus determined that the entry of default should stand, the sole question before it was whether plaintiff's motion for judgment by default should be granted. Default had been established. Once default is established, "defendant has no further standing to contest the merits of plaintiff's right to recover." Acceptance Corp., 11 N.C.App. at 509-510, 181 S.E.2d at 798 quoting with approval 3 Barron & Holtzoff, Fed.Prac. and Proc. (Wright Ed.) § 1216.

Defendant contends in her brief that the trial court erred at the hearing on plaintiff's motion for entry of judgment by default by refusing to allow introduction of 1) the deed conveying the locus in quo from Turner to defendant, and 2) two deeds of trust encumbering the locus in quo which defendant by an assumption clause in the deed assumed and agreed to pay. She sought by introduction of these documents to establish that the conveyance in question had been for a valuable consideration. She had at this juncture in the action no standing to present these documents as a defense on the merits, however, because she was deemed to have admitted the allegation in plaintiff's complaint that "Turner made a voluntary conveyance to defendant ... without consideration." Acceptance Corp., 11 N.C.App. at 509-510, 181 S.E.2d at 798. Exclusion of the documents by the trial court thus was proper; and there being no evidence before the court on which to base a denial of the motion for judgment by default, the entry of judgment by default was appropriate.

The record indicates that, after the court announced its decision to enter judgment for the plaintiff on her motion for judgment by default, "[t]he defendant moved for a directed verdict for the defendant." A motion for a directed verdict is appropriate only in a jury trial. Bryant v. Kelly, 279 N.C. 123, 181 S.E.2d 438 (1971); Town of Rolesville v. Perry, 21 N.C.App. 354, 204 S.E.2d 719 (1974).^[1] It presents the question of whether the evidence is sufficient to carry the case to the jury. Arnold v. Sharpe, 296 N.C. 533, 251 S.E.2d 452 (1979); Kelly v. Harvester Co., 278 N.C. 153, 179 S.E.2d 396 (1971). Defendant's motion for directed verdict was made following entry of judgment by default. No jury had been impaneled, and no evidence had been presented. The motion thus was inappropriate, and the trial court ruled correctly in denying it.

We find no basis in the record for disturbing the judgment of the trial court. Consequently, the judgment is

Affirmed.

HEDRICK and CLARK, JJ., concur.

NOTES

[1] These cases treated the defendants' motions as motions for involuntary dismissal under Rule 41(b). A motion for involuntary dismissal is a pre-judgment motion. The motion here was made subsequent to entry of judgment by default final.