#### ALICE PYLES v. GEORGE M. PYLES and FARMERS AND MERCHANTS BANK.

(Filed 2 April, 1924.)

Judgments — Pleadings—Default of Answer — Banks and Banking — Deposits — Default and Inquiry — Appeal and Error — New Trial.

Where the liability of a bank, a codefendant, depends solely upon the amount of money the principal defendant had on deposit at the time of the issuance of the summons, a judgment against the bank by default of an answer should be by default and inquiry, and a judgment by default final, making the bank liable beyond the amount of the deposit, is reversible error.

Appeal by defendant bank from Devin, J., at October Term, 1923, of ORANGE.

. Oivil action. Summons was issued by tbe clerk of tbe Superior Court of Orange County, 30 August, 1921, returnable 3 October, 1921, before said clerk, and said summons was served by tbe sheriff of Orange County 30 August, 1921, on Farmers and Merchants Bank by reading tbe summons to and leaving a copy thereof and a copy of tbe complaint with S. A. Johnson, cashier of said bank, and served on Geo. M. Pyles 1 September, 1921. A duly verified complaint was filed in tbe office of tbe clerk of tbe Superior Court 30 August, 1921. On 17 September, 1921, tbe defendant Geo. M. Pyles filed a duly verified answer, denying tbe principal allegations of tbe complaint. Tbe defendant bank neither demurred to tbe complaint nor filed answer thereto. Issues of fact being raised by tbe pleadings filed, tbe clerk transferred tbe case to tbe civil docket for trial at term time, and' no judgment by default nor judgment by default and inquiry was entered against tbe defendant Farmers and Merchants Bank.

There having been no answer filed by tbe defendant tbe Farmers and Merchants Bank, and no appearance by representative or attorney at tbe time case was called, nor until after completion of plaintiff’s direct testimony, there was no evidence offered by plaintiff on tbe trial to show what amount of money tbe defendant Geo. M. Pyles bad in tbe Farmers and Merchants Bank in bis name, or in tbe name of any other person, on 30 August, 1921, and no evidence as to what amount, if any, be bad on deposit in said bank at tbe time of tbe trial.

Just before tbe close of tbe evidence of tbe defendant Geo. M. Pyles, tbe defendant tbe Farmers and Merchants Bank asked tbe court to be permitted to introduce evidence by its cashier, S. A. Johnson, to show tbe amount of money on deposit in said bank in tbe name of Geo. M. Pyles on 30 August, 1921. Objection being made by plaintiff, tbe court below refused to permit tbe witness to testify upon the ground *487tbat same came too late, there baying been no answer filed, and intimated that plaintiff was entitled to judgment against the defendant the Farmers and Merchants Bank. The evidence of the witness Johnson would have been to the effect that there was only $200 on deposit in said bank in the name of Geo. M. Pyles on 30 August, 1921. To the rejection of this evidence by the court the defendant the Farmers and Merchants Bank, in apt time, excepted and now assigns the same as error.

Upon the trial the court below submitted one issue to the jury, as follows:

“1. Is the defendant, Geo. M. Pyles, indebted to the plaintiff for money had and received, as alleged in the complaint, and if so, in what amount?” The jury answered this issue “$520.”

After the jury had returned a verdict as above set forth, the defendant Farmers and Merchants Bank requested the court to enter judgment by default and inquiry as to it. The court below declined to do so, and the defendant Farmers and Merchants Bank, in apt time, excepted and assigned the same as error.

The court then signed the judgment set out in the record, to which the defendant Farmers and Merchants Bank excepted, assigned the same as error, and appealed to this Court.

A. H. Graham for plaintiff.

Gattis & Gattis for defendant.

Per Curiam.

From a careful inspection of the allegations of the complaint we think that a judgment by default and inquiry should have been rendered against the Farmers and Merchants Bank rather than a judgment by default final.

On the hearing in the court below, evidence should be confined to what funds the defendant Geo. M. Pyles had in his name belonging to the plaintiff in the Farmers and Merchants Bank on 30 August, 1921, the time the summons and complaint were served on S. A. Johnson, cashier of the Farmers and Merchants Bank. There are no allegations as to liability of the bank except for moneys deposited therein by defendant Geo. M. Pyles.

Error.