Duffer v. . Brunson

Adams, J. Under the amended statutes relating to process and pleadings the complaint should be filed on or before the return day of the summons, but the clerk for good cause may extend the time to a day certain. In the present case, the clerk did not grant an extension of. time and the complaint was filed 20 days after the return day. The defendant neither answered nor moved to dismiss; and after the lapse of several weeks the clerk rendered a judgment by default and inquiry. The lower court held that the clerk’s judgment was null and void and set aside the judgment. A void judgment is one that has merely semblance without some essential element or elements, as a want of jurisdiction or a failure to serve process or otherwise to have the party in court. An irregular judgment is one entered contrary to the course and practice of the court; and an erroneous judgment is one rendered contrary to law. A void judgment may be collaterally impeached, but an irregular judgment should be attacked by motion in the cause, and an erroneous judgment should be corrected by appeal or certiorari. Moore v. Packer, 174 N. C., 665. The clerk’s judgment was not void, but irregular; it was entered contrary to the statute and in disregard of the usual practice. Indeed, in his brief the defendant admits the judgment was merely irregular. But mere irregularity is not sufficient to warrant an order setting aside the judgment. It is essential for the moving party to show not only that he has acted with reasonable promptness, but that he has a meritorious defense against the judgment. As suggested in Harris v. Bennett, 160 N. C., 339, 347, “Unless the Court can now see reasonably that defendants had a good defense that would affect the judgment, why should it engage in the vain work of setting the judgment aside?” Hill v. Hotel Co., ante, 586; Gough v. Bell, 180 N. C., 268; Rawls v. Henries, 172 N. C., 216; Glisson v. Glisson, 153 N. C., 185. The defendant has not shown a meritorious defense. His first two affidavits relate only to an inquiry or search in the clerk’s office for the plaintiff’s complaint. The third, which was offered on the hearing before the judge* was made by the defendant’s attorney, who stated that he had investigated the proposed defense and had found that the defendant had a good and sufficient deed for the land in controversy and had been in possession “for quite a while” and was still in possession. The trial judge found that the defense is bona fide, but this is a mixed question of law and fact, and there is no sufficient evidence to support *792 the finding. “Quite a while” is indefinite. It is not alleged that the defendant’s possession is or has been adverse, or that it has covered the statutory period. Nor is the title of the plaintiffs denied. It has been held many times that the defendant must set forth facts showing prima facie a valid defense and that the validity of the defense is for the court and not with the party. Jeffries v. Aaron, 120 N. C., 167. Section 600 of the Consolidated Statutes, relating to mistake, surprise, and excusable neglect, has no application to an irregular judgment. Becton v. Dunn, 137 N. C., 559. There is no finding that the defendant’s failure to look after his case from May 10th to December 18th was excusable. In fact, the judgment was set aside, not for excusable neglect, but on the ground of irregularity. There was error, for which the judgment is Reversed.