ClaRksoN, J.
In
Bowie v. Tucker,
197 N. C., 671, the judge of the Superior Court found that in not answering plaintiffs complaint that the defendants were entitled to have the judgment by default and inquiry set aside on the ground of excusable neglect and reversed the judgment of the clerk. Plaintiff appealed to this Court and this Court reversed the judgment of the court below. The decision in part is as follows at p. 672: “The clerk gave judgment by default and inquiry and the defendants made a motion before him to set aside the judgment on the ground of excusable neglect. The motion was denied, and upon appeal the clerk’s judgment was reversed. C. S., 600. An applicant for relief under this section must show a meritorious defense, as well as excusable neglect.
Dunn v. Jones,
195 N. C., 354;
Crye v. Stoltz,
193 N. C., 802;
Helderman v. Mills Co.,
192 N. C., 626. Conceding that there is sufficient evidence of excusable neglect to support the finding to this effect, we have discovered no evidence whatever, and of course there is no finding, of a meritorious defense. . . . This is the substance of the amended complaint, which the plaintiff is entitled to establish by competent evidence, unless the defendants disconnect their fence from the plaintiff’s wall and reopen the alley, the plaintiff alternately asking either this relief or damages for the alleged wrong.”
At the close of plaintiff’s evidence and at the close of all the evidence, the defendants made motions in the court below for judgment as in case of nonsuit. C. S., 567. The court below overruled these motions and in this we can see no error. The plaintiff’s evidence was sufficient to be submitted to a jury, the question was solely one of damage under the default and inquiry judgment. N.
C.
Code of 1931 (Michie), sections 593-596. “A judgment by default is one thing; a judgment by default and inquiry consists of two things. There are two kinds of judgments by default — one final, the other interlocutory. In actions sounding in damages the interlocutory judgment, which is rendered for want of an answer, is an admission or confession of the cause of action; and there follows a writ of inquiry by means of which the damages are to be assessed.”
Junge v. MacKnight,
137 N. C., 285, 288.
A judgment by default and inquiry for the want of an answer establishes the cause of action and leaves the question of the amount of damages open to the inquiry.
Plumbing Co. v. Hotel Co.,
168 N. C., 577.
Armstrong v. Asbury,
170 N. C., 160, but the burden of proving any damages beyond such as are nominal still rests upon the plaintiff.
Hill v. Hotel Co.,
188 N. C., 586.
A judgment by default and inquiry is conclusive that the plaintiff has a cause of action and entitles him to' nominal damages without further proof.
Foster v. Hyman,
191 N. C., 189.
The exception and assignment of error made by defendants as to the issue submitted by the court below cannot be sustained. The issue and verdict is as follows: “What is the value of one-half of the brick wall which the defendants attached their fence, without the plaintiff’s permission? Answer: $1,000.”
The issue submitted arises on the pleadings and present to the jury the inquiry as to the essential matter or determinative fact in dispute.
Grier v. Weldon,
205 N. C., 575.
The judgment by default.and inquiry on the allegations in the complaint settles this matter and we are confined to what it clearly states: “Considered and adjudged that the plaintiff is entitled to a judgment by default and inquiry for the value of one-half of the brick wall erected by the plaintiff on his premises as described in the complaint to which the defendants have joined their fence and are utilizing-, which one-half value shall be determined by a jury upon proper issues submitted to them, as provided by sections 595-6-7 of the Consolidated Statutes of North Carolina.”
Where no answer is filed then the relief shall not exceed that demanded in the complaint.
Jones v. Mial,
82 N. C., 252; C. S., 606. The court below charged the jury as follows: “Now the clerk has found, in this judgment rendered here, that the defendant was entitled to pay for one-half of the wall built by the plaintiff. Then it is your dutjq your mission, to find out what a fair value of one-half of that wall built by the plaintiff as described in the complaint, was or is, or was of 4 March, 1929, when the judgment was rendered.
You are not required to find out in this case or to decide whether the plaintiff built a wall or not. Neither are you required to find out whether the defendant built his fence or attached his fence to the wall built by the plaintiff, that has already been decided and a judgment has been rendered setting that out and the judgment providing that a case should be submitted to a jury to decide what was a fair market value' of one-half of this wall.”
We do not think this exception and assignment of error made by defendants to the charge of the court below above set forth, can be sustained. The plaintiff was the owner of blocks 43, 42 and 41 and had built the wall for the distance of about 530 feet. Defendants owned lots 6, 7, 9, 8 and 10 in block 43 and the lots of defendants extended for a distance of about 250 feet along said wall and defendants joined their fence to the plaintiff’s wall at only two points in block 43. The defendants also own block No. 40, as appears on the map, and closed the alley
between the north and south portions of block No. 40, and extended a fence along the south side of the alley through block 40 and across Fourth Street, and erected a gate across said alley about the north end, between the line of lots 6 and 7 on block 41 and there again joined their fence to the plaintiff’s brick wall, utilizing this' end of the brick wall as a part of their enclosure around their property in the northern por.tion of block 40. Any contention in reference to this matter is concluded in the judgment by default and inquiry. The record discloses that the following was sent: “To IT. C. Tucker: You are hereby notified to remove the gate and fence that you have joined to my brick wall on the south side of my premises in the town of West Jefferson, N. C., and put your fence back on the line on the south side of the alley between my property and your property, and do so within five days from the date of this notice, or I will sue you for one-half of the value of said wall and also apply to the court for a restraining order, restraining you from joining this fence to my wall. This 11 April, 1928. T. C. Bowie.”
The defendant went into all these matters that are disputed, in his testimony. He even testified: “I will state that there is no alley between my property and Mr. Bowie’s and never has been. There is a driveway that I use to get into my wood shed, g'oing in and out, but no one else has ever used it.”
A deed was introduced by plaintiff from E. A. McNeill, to defendants after describing the land purchased. “And known as lots Nos. 6, 7, 8, 9, and 10, block 43 (No.
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ClaRksoN, J.
In
Bowie v. Tucker,
197 N. C., 671, the judge of the Superior Court found that in not answering plaintiffs complaint that the defendants were entitled to have the judgment by default and inquiry set aside on the ground of excusable neglect and reversed the judgment of the clerk. Plaintiff appealed to this Court and this Court reversed the judgment of the court below. The decision in part is as follows at p. 672: “The clerk gave judgment by default and inquiry and the defendants made a motion before him to set aside the judgment on the ground of excusable neglect. The motion was denied, and upon appeal the clerk’s judgment was reversed. C. S., 600. An applicant for relief under this section must show a meritorious defense, as well as excusable neglect.
Dunn v. Jones,
195 N. C., 354;
Crye v. Stoltz,
193 N. C., 802;
Helderman v. Mills Co.,
192 N. C., 626. Conceding that there is sufficient evidence of excusable neglect to support the finding to this effect, we have discovered no evidence whatever, and of course there is no finding, of a meritorious defense. . . . This is the substance of the amended complaint, which the plaintiff is entitled to establish by competent evidence, unless the defendants disconnect their fence from the plaintiff’s wall and reopen the alley, the plaintiff alternately asking either this relief or damages for the alleged wrong.”
At the close of plaintiff’s evidence and at the close of all the evidence, the defendants made motions in the court below for judgment as in case of nonsuit. C. S., 567. The court below overruled these motions and in this we can see no error. The plaintiff’s evidence was sufficient to be submitted to a jury, the question was solely one of damage under the default and inquiry judgment. N.
C.
Code of 1931 (Michie), sections 593-596. “A judgment by default is one thing; a judgment by default and inquiry consists of two things. There are two kinds of judgments by default — one final, the other interlocutory. In actions sounding in damages the interlocutory judgment, which is rendered for want of an answer, is an admission or confession of the cause of action; and there follows a writ of inquiry by means of which the damages are to be assessed.”
Junge v. MacKnight,
137 N. C., 285, 288.
A judgment by default and inquiry for the want of an answer establishes the cause of action and leaves the question of the amount of damages open to the inquiry.
Plumbing Co. v. Hotel Co.,
168 N. C., 577.
Armstrong v. Asbury,
170 N. C., 160, but the burden of proving any damages beyond such as are nominal still rests upon the plaintiff.
Hill v. Hotel Co.,
188 N. C., 586.
A judgment by default and inquiry is conclusive that the plaintiff has a cause of action and entitles him to' nominal damages without further proof.
Foster v. Hyman,
191 N. C., 189.
The exception and assignment of error made by defendants as to the issue submitted by the court below cannot be sustained. The issue and verdict is as follows: “What is the value of one-half of the brick wall which the defendants attached their fence, without the plaintiff’s permission? Answer: $1,000.”
The issue submitted arises on the pleadings and present to the jury the inquiry as to the essential matter or determinative fact in dispute.
Grier v. Weldon,
205 N. C., 575.
The judgment by default.and inquiry on the allegations in the complaint settles this matter and we are confined to what it clearly states: “Considered and adjudged that the plaintiff is entitled to a judgment by default and inquiry for the value of one-half of the brick wall erected by the plaintiff on his premises as described in the complaint to which the defendants have joined their fence and are utilizing-, which one-half value shall be determined by a jury upon proper issues submitted to them, as provided by sections 595-6-7 of the Consolidated Statutes of North Carolina.”
Where no answer is filed then the relief shall not exceed that demanded in the complaint.
Jones v. Mial,
82 N. C., 252; C. S., 606. The court below charged the jury as follows: “Now the clerk has found, in this judgment rendered here, that the defendant was entitled to pay for one-half of the wall built by the plaintiff. Then it is your dutjq your mission, to find out what a fair value of one-half of that wall built by the plaintiff as described in the complaint, was or is, or was of 4 March, 1929, when the judgment was rendered.
You are not required to find out in this case or to decide whether the plaintiff built a wall or not. Neither are you required to find out whether the defendant built his fence or attached his fence to the wall built by the plaintiff, that has already been decided and a judgment has been rendered setting that out and the judgment providing that a case should be submitted to a jury to decide what was a fair market value' of one-half of this wall.”
We do not think this exception and assignment of error made by defendants to the charge of the court below above set forth, can be sustained. The plaintiff was the owner of blocks 43, 42 and 41 and had built the wall for the distance of about 530 feet. Defendants owned lots 6, 7, 9, 8 and 10 in block 43 and the lots of defendants extended for a distance of about 250 feet along said wall and defendants joined their fence to the plaintiff’s wall at only two points in block 43. The defendants also own block No. 40, as appears on the map, and closed the alley
between the north and south portions of block No. 40, and extended a fence along the south side of the alley through block 40 and across Fourth Street, and erected a gate across said alley about the north end, between the line of lots 6 and 7 on block 41 and there again joined their fence to the plaintiff’s brick wall, utilizing this' end of the brick wall as a part of their enclosure around their property in the northern por.tion of block 40. Any contention in reference to this matter is concluded in the judgment by default and inquiry. The record discloses that the following was sent: “To IT. C. Tucker: You are hereby notified to remove the gate and fence that you have joined to my brick wall on the south side of my premises in the town of West Jefferson, N. C., and put your fence back on the line on the south side of the alley between my property and your property, and do so within five days from the date of this notice, or I will sue you for one-half of the value of said wall and also apply to the court for a restraining order, restraining you from joining this fence to my wall. This 11 April, 1928. T. C. Bowie.”
The defendant went into all these matters that are disputed, in his testimony. He even testified: “I will state that there is no alley between my property and Mr. Bowie’s and never has been. There is a driveway that I use to get into my wood shed, g'oing in and out, but no one else has ever used it.”
A deed was introduced by plaintiff from E. A. McNeill, to defendants after describing the land purchased. “And known as lots Nos. 6, 7, 8, 9, and 10, block 43 (No. 43) situated on First Street and Church Avenue; for specific description and location of said lots, reference is hereby made to the plan and blueprint of said town of West Jefferson, which is registered in the office of the register of deeds of Ashe County, North Carolina, in Book R-l, page 600, to which reference is hereby made.”
The blueprint as part of the record in this Court shows the alley. The defendant, H. C. Tucker, testified on cross-examination: “I disconnected my gate from the wall, it has been open for a year or more.” This matter, if one of partial defense, we do not think it material on this record. The defendants contended there was no alley to open. The jury heard this contention and we do not see that it is prejudicial or reversible error. As to the value, defendant Tucker, said: “I could place no value on the wall as there would be no value so far as I am concerned, and no particular value to any individual that I could see.”
J. A. Weaver, a witness for defendant, testified: “I am familiar with H. C. Tucker’s property, and the wall built by Mr. Bowie between Mr. Bowie and Mr. Tucker. I was in West Jefferson at the time the wall was built. I have an opinion satisfactory to myself as to value of the wall on 4 March, 1929. In making up the value of this wall for the
purpose of this fence it would not be more than $1.00 per foot. 250 feet of this wall is along Mr.' Tucker’s property.”
Tlie exceptions and assignments of error made by defendants cannot be sustained. The jury, tlie triers of the facts, heard all the evidence and rendered their verdict. The plaintiff contended that the wall cost about $4,000. The verdict was for $1,000. The court below in a careful charge applied the law applicable to the facts. We find in law No error.