The authority of the Clerk to act in certain circumstances does not deprive the Court of its concurrent power to specifically order entry of such judgment. This was the pre-rule holding of the few courts which passed upon the point in those situations in which the Clerk's power was derived from statutory direction, Griffing v. Smith, 26 Colo. App. 220, 142 P. 202 (1914); Hill v. Huffines Hotel Co., 188 N.C. 586, 125 S.E. 266 (1924), and also the conclusion reached by three Federal Courts when the Clerk's authority derived from Rule 55, Fisher v. Taylor, D.C., 1 F.R.D. 448 (1940); Anderson v. Taylorcraft, Inc., 5 F.R.Ser.2d 961, 197 F. Supp. 872 (D.C.W.D.Pa.) (1961), U.S. for and in Behalf of FHA v. Jackson, D.C.Or. 1938, 25 F. Supp. 79.
Chapter 92, Public Laws of 1921, Extra Session (now G.S. 1-209) gave the clerks of the Superior Court authority to enter judgments of nonsuit and certain other judgments. Thereafter, the authority of the clerk to enter judgments of nonsuit was concurrent with that of the judge at term. Hill v. Hotel Co., 188 N.C. 586, 125 S.E. 266; Caldwell v. Caldwell, 189 N.C. 805, 128 S.E. 329; Ward v. Agrillo, 194 N.C. 321, 139 S.E. 451. However, since February 14, 1945 a resident judge's jurisdiction to enter a voluntary nonsuit is not confined to term.
G.S. 1-209 et seq. Deans v. Deans, 241 N.C. 1 84 S.E.2d 321; Boone v. Sparrow, 235 N.C. 396, 70 S.E.2d 204. These statutes do not deprive the superior court in term of its jurisdiction, but give the clerk concurrent jurisdiction in respect of judgments specifically covered by their provisions. Hill v. Hotel Co., 188 N.C. 586, 125 S.E. 266; Caldwell v. Caldwell, 189 N.C. 805, 128 S.E. 329. As stated by Denny, J., in Moody v. Howell, 229 N.C. 200, 49 S.E.2d 233: "A motion to set aside a judgment by default final or by default and inquiry entered by the Clerk pursuant to the authority contained in G.S. 1-211 and 1-212, may be made either before the Clerk or the Judge of the Superior Court. Caldwell v. Caldwell, 189 N.C. 805, 128 S.E. 329. The authority of the Clerk to enter judgments pursuant to the provisions of the above statutes, as well as the power to vacate such judgments, is concurrent with and in addition to that of the Judge of the Superior Court, and the jurisdiction of the Judge on a motion to set aside a judgment so entered by the Clerk, is original as well as appellate. Caldwell v. Caldwell, supra."
The record discloses that this matter was continued from time to time until the September Term of said court, at which term a hearing was held and judgment entered. It will be noted that counsel for defendants at that time, as well as the present counsel for the appealing defendant, made no motion to set aside the judgment herein for excusable neglect. C. S., 600; Bank v. Duke, 187 N.C. 386, 122 S.E. 1; Hill v. Hotel Co., 188 N.C. 586, 125 S.E. 266; Hooks v. Neighbors, 211 N.C. 382, 190 S.E. 236. The third assignment of error, challenging the correctness of the judgment below, does present the real question involved in this appeal. Has the defendant, Carrie Thrash Dorsett, shown a valid legal reason for her failure to have William Dudley Pelley appear in the Superior Court of Buncombe County, N.C. as provided in her bond? If so, the judgment is erroneous.
The record imports verity. In Hill v. Hotel Co., 188 N.C. 586 (589), we find: "As we understand the defendant it insists that a judgment by default and inquiry should have been entered by the clerk and the cause should then have been transferred to the Superior Court docket for the award of damages. The position assumes, we take it, that the clerk had the exclusive power to render such judgment and that the case when heard was not properly before the judge.
In Hooks v. Neighbors, 211 N.C. 382 (385), is the following: "In order to set aside a judgment for mistake, surprise, or excusable neglect, there must be a showing of a meritorious defense so that the courts can reasonably pass upon the question whether another trial, if granted, would result advantageously for the defendant. Bank v. Duke, 187 N.C. 386; Hill v. Hotel Co., 188 N.C. 586; Fellos v. Allen, 202 N.C. 375. A judgment may be set aside under this section if the moving party can show excusable neglect and that he has a meritorious defense.
In order to set aside a judgment for mistake, surprise, or excusable neglect, there must be a showing of a meritorious defense so that the courts can reasonably pass upon the question whether another trial, if granted, would result advantageously for the defendant. Farmers, etc., Bank v. Duke, 187 N.C. 386; Hill v. Huffines Hotel Co., 188 N.C. 586; Fellos v. Allen, 202 N.C. 375. A judgment may be set aside under this section if the moving party can show excusable neglect and that he has a meritorious defense.
It determines the right of the plaintiff to recover at least nominal damages and costs. Foster v. Hyman, 197 N.C. 189, 148 S.E. 36; Hill v. Hotel Co., 188 N.C. 586, 125 S.E. 266; Blow v. Joyner, 156 N.C. 140, 72 S.E. 319; Plumbing Co. v. Hotel Co., 168 N.C. 577, 84 S.E. 1008; Patrick v. Dunn, 162 N.C. 19, 77 S.E. 995. 3.
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.
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, Junge v. MacKnight, 137 N.C. 285, 288, 49 S.E. 474; Farmer-Cole Plumbing Co. v. Wilson Hotel Co., 168 N.C. 577, 84 S.E. 1008; Armstrong v. Asbury, 170 N.C. 160, 86 S.E. 1038; Gillam v. Cherry, 192 N.C. at p. 198; but the burden of proving any damages beyond such as are nominal rests upon the plaintiff. Hill v. Hotel Co., 188 N.C. 586, 125 S.E. 266. The Globe Indemnity Company had issued a policy of insurance, or indemnity, to the defendant, Robert Earle, who the Indemnity Company charged had violated his contract with the company, and had not given proper notice of the accident or of this action, or defended the suit.