The December and January terms of Lenoir Superior Court were criminal terms, but the statute 1909, ch. 618, permits process to be returnable to and pleadings to be filed at such criminal terms. Revisal, 453, requires the defend ant in ejectment to file the undertaking therein specified before he shall be allowed to plead or defend, unless he shall procure leave to defend without bond in -the manner prescribed by Revisal, 454. The defendants neither filed the undertaking nor procured leave to defend without giving the same, and the court therefore was within its power in striking out the answer and in granting judgment.
The judgment having been entered during a term of the court, the defendants were fixed with notice, and it was not necessary to serve notice of motion for judgment upon them. Hemphill v. Moore, 104 N. C., 379; Reynolds v. Machine Co., 153 N. C., 342.
The Revisal, sec. 556, provides that, “Judgment by default final may be had upon failure of defendant to answer as follows,” and then sets out four subdivisions.
In the first of these subdivisions a verified complaint is required by express terms, and the second refers to the first in such way that the same requirement would be necessary under it.
In the third subdivision there is no reference to a verified complaint, but in lieu thereof the plaintiff is required to make proof of the demand in the complaint..
The fourth subdivision is as follows: “In actions for the recovery of real property, or for the possession thereof, upon
It will be observed that tbe cause of action set out in tbe complaint in tbis action falls witbin tbe fourth subdivision, and in it there is no reference to tbe verification of tbe pleadings, and judgment is entered because of failure to file bond. ■
Tbe fact that a verified complaint is mentioned in tbe first and second subdivisions, that there is a different requirement in tbe third, and that in tbe fourth tbe requirement as to verification is omitted, would seem to lead to tbe conclusion that tbe plaintiff is entitled to judgment by default final upon an unverified complaint, upon failure to give bond in an action to recover land.
If tbe General Assembly'bad intended that a judgment by default final should not be rendered in any case except upon verified complaint, it would have said, “Judgment by default final may be bad on a complaint duly verified on failure of defendant to answer as follows.”
If, however, tbe plaintiff was only entitled to judgment by default and inquiry, tbe judgment rendered amounts to no more than tbis, as it simply adjudicates that tbe plaintiff is tbe owner of tbe land, and directs the' tax deed to be canceled, and no inquiry as to damages is ordered.
In Blow v. Joyner, 156 N. C., 140, it is held that a judgment by default and inquiry concludes as to all issuable facts properly pleaded, and that evidence in bar of plaintiff’s right of action is not admissible on tbe inquiry as to damages, and that sucb a judgment establishes tbe cause of action set out in tbe complaint.
If so, a judgment by default and inquiry upon tbe complaint in tbis action would declare tbe plaintiff to be tbe owner in fee of tbe land in controversy, and would entitle him to an inquiry as to damages; and tbe judgment rendered does less than tbis, as tbe clause as to tbe inquiry is omitted and tbe plaintiff re-covers no damages.
Affirmed.