Ezra MEIR and wife, Violet S. Meir
v.
Russell C. WALTON, Jr. and wife, Margie G. Walton.
No. 6910SC365.
Court of Appeals of North Carolina.
October 22, 1969.*168 Manning, Fulton & Skinner, by Jack P. Gulley, Raleigh, for plaintiff appellees.
Jordan, Morris & Hoke, by John R. Jordan, Jr., and Robert Gruber, Raleigh, for defendant appellants.
VAUGHN, Judge.
The sole assignment of error brought forward by the defendants attacks the portion of the judgment which permanently restrains them from using that portion of the dirt path located on the property of the plaintiffs as shown on the map referred to by the court below when it determined the true and correct boundary between the parties. This exception is based on the fact that there was no demand for a permanent restraining order in the prayer for relief of the plaintiffs' complaint.
G.S. § 1-122 provides that the complaint must contain "* * * demand for the relief to which the plaintiff supposes himself entitled." In applying the statute our courts have consistently followed the rule that the relief to be granted does not depend upon that asked for in the complaint, but upon whether the matters alleged and proved entitle the complaining parties to the relief granted, and this is so in the absence of any prayer for relief. Griggs v. Stoker Service Co. and York-Shipley, Inc., 229 N.C. 572, 50 S.E.2d 914, 15 A.L.R. 2d 798. This continues to be true where answer is filed.
Where no answer is filed; however, the relief which can be granted the plaintiff is limited by G.S. § 1-226 which reads:
"When limited by demand in complaint.The relief granted to the plaintiff, if there is no answer, cannot exceed that demanded in his complaint; but in any other case the court may grant him any relief consistent with the case made by the complaint and embraced within the issue."
The general rule elsewhere seems to be that "* * * relief granted in a judgment by default must be, not only within the fair scope of the allegations of the complaint, but also within the fair scope of the prayer thereof." 30A Am.Jur., Judgments, § 214.
Although we can find no case where the North Carolina courts have limited the relief to that demanded in the prayer for relief, it is very clear that where no answer is filed, the relief granted cannot exceed that actually demanded somewhere in the complaint when considered in its entirety.
In Simms v. Sampson, 221 N.C. 379, 20 S.E.2d 554, the Supreme Court speaking *169 through Denny, J., stated: "But if the respondent answers, the court may grant any relief which is consistent and embraced within the issues raised by the pleadings. Where, however, respondent does not answer, but makes default, the relief granted to petitioner cannot exceed that which he has demanded and that necessarily incident thereto."
Defendants' failure to answer within the statutory time prevents them from denying any fact set forth in the verified complaint, and admits that plaintiffs are entitled to such relief as the law gives them upon the facts alleged, but they may be heard to object to the judgment by default final as not strictly conforming to and being supported by the allegations of fact in the verified complaint. Collins v. Simms, 254 N.C. 148, 118 S.E.2d 402; Pruitt v. Taylor, 247 N.C. 380, 100 S.E.2d 841.
The limitation on "the relief granted" cannot be said to be restricted to cases involving award of money damages. Collins v. Simms, supra. "Relief" is a general designation of the assistance, redress or benefit which a complainant seeks at the hands of a court. Black's Law Dictionary, 4th Ed. (1969).
A careful study of the entire complaint discloses no demand for relief which would empower the court to permanently restrain the parties from going on the property of the other. The only injunctive relief demanded by the plaintiffs was an order to restrain Russell C. Walton, Jr., pending the trial of the action. The record discloses that even the temporary restraining order did not prohibit the defendants from going on the property in question but provided for the joint use by the parties pending the trial. It is also to be observed that although the plaintiffs sought only to temporarily restrain the male defendant, the judgment appealed from permanently restrains Margie G. Walton from going on the property of the plaintiffs.
The judgment is modified to the extent that the portion thereof permanently restraining either of the parties from going on the property of the other is vacated. The remainder of the judgment is affirmed.
Modified and affirmed.
BROCK and BRITT, JJ., concur.