H. & E. Hartman & Co. v. Farrior

95 N.C. 177

Opinion

MerrimoN, J.

(after stating the facts). It is obvious that the complaint alleges a cause of action, and the breach of an express promise to pay absolutely a definite sum of money, particularly specified, for a valuable consideration. The complaint is verified; it appears that the defendant was served personally with the summons, and that no answer or other pleading was filed. The plaintiff was therefore entitled to have judgment by default final, for the sum of money specified, and for costs. The statuie, (The Code, §385,) expressly provides, that in such case the plaintiff may thus have judgment at the return or appearance term of the Court.

The appellant's counsel cited and relied upon Witt v. Long, 93 N. C., 388. That case is very different from the present one. In it, the complaint alleged that the plaintiffs had sold and delivered to the defendants, at their request, goods of the reasonable value of a sum of money specified, but it did not allege that the defendants promised to pay absolutely a particular sum of money for the goods, but only their reasonable value. Besides, the complaint was not verified. In that and like cases, the plaintiffs could only have judgment by default and inquiry.

There is no error,and the judgment must be affirmed.

No error. Affirmed.