Monroe v. . Whitted

Bynum, J. Admit that the defendant was in Court, because he confessed service of an irregular summons. He was summoned to answer the complaint of the plaintiff with a notice that if he failed to answer, the plaintiff would ■apply at the appearance term for the relief demanded in the complaint; Ve are satisfied that no complaint was ever filed. As the summons stated no cause of action and no complaint was filed, there was nothing before the Court or -on the record, upon which the Court could grant a judgment .against the defendant for $600. It was a judgment without .allegation, pleadings, or proof. There was no appearance by the defendant, in person, or by attorney; no jury was Impannelled, and no bond, account, or claim exhibited. The appearance docket conflicts with the minute docket,— •one showing a judgment by default, the other, a judgment by consent, — the consent of whom ? for the record does not show any appearance by the defendant. We are satisfied irom the evidence of the clerk that no pleadings were actually filed, and that the entries on the docket were made by or under the direction of the plaintiff, and that in point of fact no judgment was ever rendered by the knowledge or sanction of the Judge presiding. It was irregular arid *510 ought to be set aside. It is not a case falling under § 133 of the Code, where the motion must be made in one year from the rendition of the judgment. An irregular judgment may be set aside at any time. Mabry v. Erwin, 78 N. C., 46; Cowles v. Hayes, 69 N. C., 406; Keaton v. Banks, 10 Ire., 381. The motion should have been granted, and the parties allowed to plead. Error. Reversed.