Patricia HARRIS
v.
Joe H. CARTER et al.
No. 7617SC733.
Court of Appeals of North Carolina.
May 4, 1977.*474 Bethea, Robinson, Moore & Sands by Alexander P. Sands, III, Reidsville, for plaintiff-appellant.
Gwyn, Gwyn & Morgan by Allen H. Gwyn, Jr., Reidsville, for defendants-appellees.
PARKER, Judge.
Plaintiff first assigns error to the denial of her motion for summary judgment. Pointing to the entry of default against defendant McNeil, plaintiff's counsel state in their brief that "[i]t is the contention of the plaintiff that since liability has been established against one alleged partner, all that is necessary to establish the liability of the remaining partners individually is to establish the partnership." They then point to certain facts stated in depositions of McNeil, his wife, his son, and of plaintiff which they assert establish the existence of a partnership between the Carters and McNeil, and from these premises they argue that plaintiff was entitled to have summary judgment entered in her favor against the Carters. We do not agree.
At the outset, we note that plaintiff's counsel misapprehend the effect of the entry of default against defendant McNeil. Long ago the United States Supreme Court dealt with this problem in the leading case of Frow v. De La Vega, 15 Wall. 552, 21 L. Ed. 60 (1872). In that case the Court said (p. 554):
"The true mode of proceeding where a bill makes a joint charge against several defendants, and one of them makes default, is simply to enter a default and a formal decree pro confesso against him, and proceed with the cause upon the answers of the other defendants. The defaulting defendant has merely lost his standing in court. He will not be entitled to service of notices in the cause, nor to appear in it in any way. He can adduce no evidence; he cannot be heard at the final hearing. But if the suit should be decided against the complainant on the merits, the bill will be dismissed as to all the defendants alikethe defaulter as well as the others. If it be decided in the complainant's favor, he will then be entitled to a final decree against all."
Default judgments in this jurisdiction are now governed by G.S. 1A-1, Rule 55, which appears to be a counterpart of Rule 55 of the Federal Rules of Civil Procedure. Discussing the Federal Rule, the author of Moore's Federal Practice, after citing and quoting from Frow v. De La Vega, supra, said:
"If, then, the alleged liability is joint a default judgment should not be entered against a defaulting defendant until all of the defendants have defaulted; or if one or more do not default then, as a general proposition, entry of judgment should await an adjudication as to the liability of the non-defaulting defendant(s). If joint liability is decided against the defending party and in favor of the plaintiff, plaintiff is then entitled to a judgment against all of the defendants both the defaulting and non-defaulting defendants. If joint liability is decided against the plaintiff on the merits or that he has no present right of recovery, as distinguished from an adjudication for the non-defaulting defendant on a defense personal as to him, the complaint should be dismissed as to all of the defendantsboth the defaulting and the non-defaulting defendants." 6 Moore's *475 Federal Practice, 2nd Ed., Paragraph 55.06, pp. 55-81, 55-82.
This Court has already held that, absent any specific provision in our North Carolina rules or statutes governing the situation where a default is entered or a default judgment is obtained in a case in which there are multiple defendants, we would follow the federal practice in this regard. Rawleigh, Moses & Co. v. Furniture, Inc., 9 N.C.App. 640, 177 S.E.2d 332 (1970). Thus, even though it had been admitted or otherwise conclusively established that a partnership existed between the Carters and McNeil, the entry of default against McNeil would not have barred the Carters from asserting all defenses they might have to defeat plaintiff's claim. This would also be true had default judgment, as distinguished from a mere entry of default, been obtained against McNeil. See United States v. Borchardt, 470 F.2d 257 (7th Cir. 1972).
Even if we consider plaintiff's motion for summary judgment as having been made on a more limited basis, not to determine liability of the Carters but to determine the existence vel non of a partnership between them and McNeil, we still find no error in the trial court's ruling denying the motion. Summary judgment is proper only when the moving party has shown that there is no genuine issue as to any material fact and such party is entitled to judgment as a matter of law. G.S. 1A-1, Rule 56(c). Here, although there is testimony in the depositions of McNeil, his wife, and his son which tends to show that a partnership existed between McNeil and the Carters, there is also evidence in this record to support the position of the defendants Carter that the true legal relationship between them and McNeil was that of landlord-tenant. Plaintiff herself alleged as much in her "Third Alternate Cause of Action" in her complaint. Moreover, plaintiff's evidence tending to show the existence of a partnership is contained primarily in the deposition of McNeil, and it is apparent from this record that McNeil, although nominally a defendant, is cooperating completely with the plaintiff in an attempt to further her cause against the Carters. Even so, there are portions of McNeil's deposition, as, for example, where he speaks of having rented the house in which he lived on the farm, which tends to show a landlord-tenant relationship rather than a partnership. On this record we find there was a genuine issue as to the material facts bearing upon the true legal relationship between the Carters and McNeil. The trial judge properly denied plaintiff's motion for summary judgment.
Plaintiff also assigns error to the court's allowance of the Carter defendants' motion for summary judgment. The Carter defendants based their motion on certain deposition testimony given by plaintiff in which plaintiff stated that she noticed, about a week before the accident, that when one walked on the floor of the packhouse "the planks would wobble, it was weak." Defendants also cite the following testimony of plaintiff from her deposition:
"Q. Well, you didn't honestly feel that was unsafe did you?
A. Yes, I would walk on anything like that and it is unsafe to me.
Q. You did not think it was dangerous did you?
A. Yes, I really didn't want to work back there.
Q. Did you honestly feel it was dangerous?
A. Dangerous, unsafe, that is the way I will put it, it was unsafe."
Although this testimony certainly constitutes some evidence upon which a finding of contributory negligence could be made, plaintiff in her verified response to defendants' summary judgment motion asserts that the excerpts of the deposition testimony used by defendant were taken out of context. In support of her position, plaintiff points out certain testimony adduced in the deposition in which plaintiff stated that she did not notice anything unusual about the floor before the accident on 7 October 1972, that there was nothing before that date to lead her to believe that the floor was actually unsafe, but that after the accident *476 she noticed the floor was weak. Thus, plaintiff's verified response offers some evidence contradicting defendants' assertion that "plaintiff was aware of the defect in the floor and that it was dangerous" at least a week before the action. The conflicting evidence as to plaintiff's knowledge of the defect raises a genuine issue of material fact on the question of whether she was contributorily negligent. Therefore, the court erred in allowing defendants' motion for summary judgment and in dismissing the action.
For the reasons stated:
The Order denying plaintiff's motion for summary judgment is
Affirmed.
The order allowing defendants' motion for summary judgment is
Reversed, and this cause is remanded to the Superior Court for further proceedings.
BROCK, C. J., and ARNOLD, J., concur.