Opinion
(Filed 6 June, 1930.)
1. Pleadings E a — Where copy of answer containing counterclaim is not served on plaintiff its allegations are to be dealt with as denied.
Under the provisions of chapter 18, Public Laws of 1924, the allegations in an answer constituting a counterclaim are to be considered and dealt with as denied where a copy of the answer containing the counterclaim is not served on the plaintiff.
2. Judgments K c — Where answer containing counterclaim has not been served on plaintiff, judgment by default thereon should be set aside.
Where a copy of an answer containing a counterclaim is not served on the plaintiff, the allegations going to make up the counterclaim are to be considered as denied, chapter 18, Public Laws of 1924, and where judgment by default and inquiry has been entered on the counterclaim for plaintiff's failure to plead thereto, the plaintiff's motion to set aside such judgment should be allowed.
APPEAL by plaintiff from MacRae, Special Judge, at December Term, 1929, of TRANSYLVANIA.
Galloway Martin and Ralph H. Ramsey, Jr., for plaintiff.
No counsel appearing for defendants.
Civil action to recover on two promissory notes. Summons issued and complaint filed 22 July, 1927. Defendants answered 27 July, 1927, denied liability and set up a counterclaim for $6,800.
The answer of defendants, containing said counterclaim, was not served on plaintiff or his attorneys (so stated in the agreed statement of case on appeal), and no answer, demurrer, or reply to the counterclaim was filed by the plaintiff; whereupon on 12 September, 1927, judgment by default and inquiry was entered against the plaintiff, and in favor of defendants, on said counterclaim.
Thereafter, at the December Term, 1929, Transylvania Superior Court, plaintiff moved to set aside the judgment by default and inquiry previously entered on the counterclaim, on the ground that no copy of the answer containing said counterclaim, was ever served on the plaintiff or his attorneys, and therefore, under chapter 18, Public Laws, Extra Session, 1924, such counterclaim is deemed denied. Motion disallowed, and plaintiff appeals.
after stating the case: It was held in Lumber Co. v. Welch, 197 N.C. 249, 148 S.E. 250, construing chapter 18, Public Laws, Extra Session, 1924, that, unless a copy of the answer containing a counterclaim is served on the plaintiff or his attorney, the allegations going to make up such counterclaim are to be considered and dealt with as denied. Hence, under authority of the Welch case, it would seem that the plaintiff's motion is well founded.
Reversed.