Roberts v. . Sawyer

48 S.E.2d 468, 229 N.C. 279, 1948 N.C. LEXIS 465

Opinion

Stacy, O. J.

We think there was error in striking the respondents’ answer from the record for want of a defense bond, and entering judgment by default on the petition.

In the first place, there is no denial of petitioners’ title except as to the true boundary line. Clark v. Dill, 208 N. C., 421, 181 S. E., 281. The title is not really in dispute. Woody v. Fountain, 143 N. C., 66, 55 S. E., 425.

Secondly, a defense bond is not required in a special proceeding to establish boundaries. G. S., 38-1 to 38-4.

Thirdly, even if title were involved, Smith v. Johnson, 137 N. C., 43, 49 S. E., 62, the proceeding would in effect be assimilated to an action to quiet title, Woody v. Fountain, supra, G. S., 41-10, and no bond is required in such an action. Timber Co. v. Butler, 134 N. C., 50, 45 S. E., 956.

Furthermore, it seems not to have been considered whether the petitioners had waived their right to interpose the motion or had lost it by laches, even if it had been apposite. Calaway v. Harris, 229 N. C., 117.

The judgment will be vacated and the cause remanded for further proceedings as to justice appertains and the rights of the parties may require.

Error and remanded.