Puette v. . Mull

BeowN, J. This action was brought to recover possession of a tract of land. The summons was duly served and returned at July Term, 1917, at which time the complaint was filed, duly verified. The plaintiff did not move for judgment .at the return term and the cause was continued until the following term, November,-1917. At that time the plaintiff moved the court for judgment by default final for failure of the defendant to file answer or defense bond. At. that term Ferguson, J., entered the following order: “It is ordered by the court that the defendants be and they are hereby allowed ten days from this date to file answer and justified defense bond, and in default the plaintiff is allowed judgment final by default, and the judgment hereto attached shall be and constitute such judgment by default final.” This order is dated 7 December, 1917, and attached to it is a judgment in the ordinary form by default final for failure to file an answer or defense bond, whereby the plaintiff is adjudged to be the owner of the land described in the complaint, and directing the issuing of a writ of possession. No answer or defense bond having been filed within the ten days from the adjournment of the court this judgment was duly docketed by the clerk on 24 December, 1917. After that, on motion of the plaintiff, a writ of possession was issued. The cause came on to be heard before Carter, J., upon a motion to enjoin the execution of the writ and to set the same aside. Upon the *536 bearing be adjudged tbat tbe writ of possession was improvidently issued; tbat no judgment bad been duly entered and docketed during tbe regular term of tbe court, and tbat tbe docketing of tbe judgment on 24 December after tbe term expired was a nullity. His Honor set aside tbe writ of possession and directed tbat tbe defendants be permitted to file an answer and defense bond. Tbe plaintiff excepted. We are of opinion with, bis Honor tbat, according to tbe record, no judgment was rendered by Judge Ferguson during tbe term of tbe court, and tbat tbe docketing of the judgment on tbe 24th of December — three weeks after tbe term bad ended — was a nullity. We have often held tbat a judgment to be valid must be rendered during tbe regular term of tbe court and before it has been adjourned. In this case it is manifest tbat no judgment was rendered to become effective during tbe term of tbe court. The order made during tbe term was tbat tbe defendants should file an answer and defense bond within ten days after tbe term expired on 7 December, and if they failed to comply with tbat order, then, and then only, was tbe judgment to be docketed by tbe clerk and entered upon tbe minutes of tbe court. It is true, a judgment sufficient in form was drawn up and signed by tbe judge and attached to tbat order, but it did not go into effect and was not docketed during tbe term. Tbe judge bad no power to provide tbat tbe judgment should go into effect at some future date upon tbe failure to perform tbe condition named in tbe order. Therefore, we are of opinion there was no valid judgment rendered and docketed during tbe term upon which a writ of possession could issue. This case is tbe opposite from Hopkins v. Bowers, 111 N. C., 175. In tbat case tbe judge rendered and signed tbe judgment, but directed tbe clerk to strike it out if a bond were filed within five days after the court adjourned. This Court held tbat tbe condition was invalid and tbat tbe judgment was regular and would be enforced. In tbe case at bar tbe judge granted ten days within which to file tbe answer and bond, and provided tbat if they were not filed within tbat time, tbat then, and then only, tbe judgment was to be docketed and go into effect. Affirmed.