Collins v. Simms

118 S.E.2d 402, 254 N.C. 148, 1961 N.C. LEXIS 379

• Court: Supreme Court of North Carolina
• Decided: March 1, 1961
• Docket: 32
• Status: Published

Opinion

PARKER, J.

Defendant has one exception, and that is to the judgment of Judge Bone. This presents only the face of the record for inspection or review. King v. Rudd, 226 N.C. 156, 37 S.E. 2d 116; Sprinkle v. City of Reidsville, 235 N.C. 140, 69 S.E. 2d 179.

The face of the record shows that summons was duly served on defendant on 20 February 1960, and at the same time a copy of the summons, a copy of the verified complaint, and a copy of the temporary restraining order were delivered to him, pursuant to the provisions of G.S. 1-89, 1-94, and 1-121. The summons notified defendant in precise language, pursuant to the provisions of G.S. 1-89, that if he failed to answer the complaint within thirty days after the date of service, the plaintiffs will apply to the court for the relief demanded in the complaint. On 5 March 1960, the return date of the temporary restraining order, defendant personally appeared before Judge Morris, and consented .to the continuance of the temporary restraining order in full force and effect until the final hearing of the action. The record before us shows that at the time of the regular May Term 1960 of Dare County Superior Court defendant had filed neither an answer nor a demurrer, nor any other pleading in the action, and that defendant had neither requested, nor been granted an extension of time in which to plead, and that the time within which he could file pleadings had long expired.

Defendant’s failure to plead within the statutory time in response to the summons and verified complaint personally served upon him within the jurisdiction of the court, thereby admitting the allegations of fact in the verified complaint, entitled plaintiffs to a judgment by default final at the regular May Term 1960 of Dare County Superior Court on the cause of action, if any, stated in the verified complaint. Junge v. MacKnight, 137 N.C. 285, 49 S.E. 474, (reversing the same case reported in 135 N.C. 105, 47 S.E. 452); Lee v. McCracken, 170 N.C. 575, 87 S.E. 497; Gillam v. Cherry, 192 N.C. 195, 134 S.E. 423; Beard v. Sovereign Lodge, 184 N.C. 154, 113 S.E. 661; Land Bank v. Davis, 215 N.C. 100, 1 S.E. 2d 350; Presnell v. Beshears, 227 N.C. 279, 41 S.E. 2d 835. See Eason v. Dortch, 136 N.C. 291, 48 S.E. 741, concurring opinion by Montgomery, J., who wrote the opinion of the Court in Junge v. MacKnight, 135 N.C. 105, 47 S.E. 452, in which he said the decision he wrote in the Junge case "was erroneous.”

A judgment by default musí strictly conform to, and be supported by the allegations of fact in the verified complaint. G.S. 1-226; Pruitt v. Taylor, 247 N.C. 380, 100 S.E. 2d 841; Simms v. Sampson, 221 N.C. 379, 20 S.E. 2d 554; Land Bank v. Davis, supra; 49 C.J.S., Judgments, Sec. 214, b.

The verified complaint alleges that Haven Creek Baptist Church, Manteo, North Carolina, is congregational in its church polity, is a self-governing unit, has no formal constitution or by-laws, and like other Baptist churches a majority of its members, nothing else appearing, controls its church property and the election or re-election of its pastor. Windley v. McCliney, 161 N. C. 318, 77 S.E. 226; Reid v. Johnston, 241 N.C. 201, 85 S.E. 2d 114.

The complaint alleges these facts: The defendant, the Rev. J. C. Simms, served as pastor of the Haven Creek Baptist Church for the year 1959. On 15 November 1959 an-announcement was made that the regular annual business meeting for the election of officers and a pastor for the church would be held on Friday night, 27 November 1959. On the next Sunday, 22 November 1959, similar announcements were made at Sunday school and at the Baptist Training Union. The announcements and the holding of the regular annual meeting on 27 November 1959 were all made and done in accordance with the custom and usage of this church, just as elections -had been held in previous years. At this meeting there was some -support for the defendant, “but a majority of the members at the regular annual business meeting . . . have voted not to employ him (the defendant) as pastor.” The secretary of the board of deacons notified defendant by letter of the action taken. Despite the action of a majority of the members of the church in not re-electing defendant as its pastor for the year 1960, defendant has returned to the church on every preaching Sunday in the year 1960 to the date of the filing of the complaint herein, has attempted to act as pastor, and has told various members of the church and its board of deacons that he intended to continue to attend this church and act as pastor, which is having a disruptive influence on the church and its worship service to its irreparable damage.

The subject matter of the action is in Dare County, and defendant was personally -served with process within the jurisdiction of the court. The court has jurisdiction over the subject matter and the parties. There is no merit to defendant’s contention that the court has no jurisdiction.

The manner of the calling of the regular annual business meeting of Haven Creek Baptist Church for 27 November 1959 and the holding of the meeting to ascertain the will of the members of the church were all made and done in accord with the customs and practices of the church, just as elections had been held in previous years, and was proper. McDaniel v. Quakenbush, 249 N.C. 31, 105 S.E. 2d 94.

The verified complaint states a good cause of action for injunctive relief to prevent defendant after the year 1959 from appearing at the church and acting or attempting to act as its pastor at a religious service or at any other church meeting, so long as he is not its pastor. It does not state a good cause of action against defendant for per petual injunctive relief to prevent him from merely appearing at the church, and Judge Hooks’ judgment by default final in which he decreed “that the defendant be and he is hereby perpetually enjoined and restrained from appearing at the Haven Creek Baptist Church or trespassing on the grounds or in the church building” is not supported by the allegations of fact in the verified complaint, and is far in excess of the relief the law gives plaintiffs upon the facts alleged in their verified complaint. The complaint alleges a minority of the church members supports defendant. It is possible that a majority of the church members at a properly called meeting may decide in the future to elect defendant as its pastor. If that should occur, Judge Hooks’ judgment as it stands would prevent defendant from even appearing at the church.

Defendant’s failure to answer within the statutory time prevents him from denying any facts set forth in the verified complaint, and admits that plaintiffs are entitled to such relief as the law gives them upon the facts alleged, but he may be heard to object to the judgment by default final as not strictly conforming to, and being supported by the allegations of fact in the verified complaint.

Judge Hooks’ judgment by default final, which grants relief in excess of that encompassed in the verified complaint, is irregular. Pruitt v. Taylor, supra; Simms v. Sampson, supra; Land Bank v. Davis, supra; White v. Snow, 71 N.C. 232. A motion in the cause is the proper course to obtain relief from such an irregular judgment. Pruitt v. Taylor, supra; Collins v. Highway Commission, 237 N.C. 277, 74 S.E. 2d 709; Land Bank v. Davis, supra; Fowler v. Fowler, 190 N.C. 536, 130 S.E. 315.

“An irregular judgment is not void. It stands as the judgment of the court unless and until it is set aside by a proper proceeding.” Collins v. Highway Commission, supra.

Defendant filed his motion to vacate Judge Hooks’ judgment by default final on 30 September 1960. It was heard at the October Term 1960 of Dare County Superior Court by Judge Bone. Defendant has been diligent to protect his rights. His motion shows that Judge Hooks’ judgment by default final injuriously affects his rights, that he has stated meritorious grounds for relief, and that no rights of innocent third parties have intervened.

A judgment by default final restraining defendant, whom a majority of the members of this church has voted not to employ as its pastor after the year 1959, from appearing at this church after the year 1959 and acting or attempting to act as its pastor at a religious service or at any other church meeting, so long as he is not its pastor, violates no rights guaranteed to him by Article I, Sections 1, 17, 25 and 26 of the North Carolina Constitution, or by the 1st and 14th Amendments to the United States Constitution.

It may be stated in passing that there is no allegation in the complaint that defendant is a member of this church.

That part of Judge Bone’s judgment denying the motion by Lloyd Meekins and other persons, who were not parties to the action, to vacate Judge Hooks’ judgment and to dissolve the permanent injunction therein entered, is correct, was not appealed from by movants, and is affirmed. Shaver v. Shaver, 244 N.C. 309, 93 S.E. 2d 614. That part of Judge Bone’s judgment denying defendant’s motion to vacate Judge Hooks’ judgment by default final cannot be sustained, and is remanded to the lower court for a judgment vacating that part of Judge Bone’s judgment, and for the entry of a judgment by default final restraining defendant in accordance with the injunctive relief to which this opinion holds plaintiffs are entitled.

Affirmed in part.

Error and remanded in part.