Becton v. Dunn.

The summons in this action was issued in August, 1902, returnable to September Term, 1902, of the Superior Court of LENOIR. At November Term, 1902, the plaintiff filed his complaint, duly verified, stating that he was the owner of the land in controversy and the defendant as in wrongful possession of the same, wrongfully withholding it from the plaintiff, etc.

At the said November Term, 1902, pursuant to notice previously given, the presiding judge made an order appointing a receiver on the real estate, giving him the property in possession to hold the same as such receiver. The order provided that the same should be vacated if the defendant should file a justified bond in the sum of $200 "for purposes of receiver" in ten days. At said term the defendant filed a verified answer, denying the allegation of the complaint and setting up a further defense, meritorious if the same be established as alleged. At the same term bond was filed by the defendant with surety in the sum of $200, in the usual form for defendants' bonds in actions for realty. On the back of this bond were the entries, "Filed 3 December, 1902; signed Plato Collins, C. S.C.," and a further entry, "Plaintiff comes into court by his attorneys and excepts to the filing of this bond, 3 December, (561) 1902." So far as the record discloses, no notice was given the defendant that his bond was excepted to, and no action was taken in reference to the same by order requiring further security, or as to the surety justifying on the undertaking already filed. At January (Special) Term, 1903, judgment by default final was taken according to the prayer of the complaint. On 4 September, 1903, the defendant caused notice to be served on the plaintiff that he would, at September Term following, move to set aside the judgment against him. At said term no entry of this motion appears, and no entry concerning the same appears on the record till June, 1904, when the defendant filed an affidavit alleging further merits, and at said term the motion was made and his Honor made the order as heretofore stated.

From this statement it will be observed that no motion was made in court by the defendant until June Term, 1904, more than one year after the rendition of the judgment. His Honor declines to set aside the judgment because the defendant had waited too long. As we construe the order, the relief was denied on the ground that the motion was made more than one year after the rendition of the judgment, and that the court then had no power to disturb it. This position of his Honor was no doubt on the idea that this was considered a proceeding to set aside a judgment for surprise or excusable neglect under section 274 of The Code, and that such motion was required to be made within one year from the rendition of the judgment. The plaintiff appellee evidently so regarded it, as the authorities cited by him are all decisions under that section. This section was enacted to afford a defendant relief where a judgment regular in form had been taken against him through his mistake, inadvertence, surprise, or excusable neglect; and if this judgment were of such character, that is, one taken according to (562) the course and practice of the court, the ruling of his Honor would be correct; but the judgment herein complained, of is an irregular judgment, one contrary to the course and practice of the court, and can be set aside after one year on proper showing made.

The authorities are all to the effect that an irregular judgment may be set aside at a subsequent term, independent of section 274. Wolfe v. Davis,74 N.C. 597. This is not done as a matter of absolute right in the party litigant, but rests in the sound legal discretion of the court. It is always required that a party claiming to be injured should show that some substantial right has been prejudiced, and he must proceed with proper diligence and within a reasonable time. 17 A. E. (2 Ed.), 84. There is, however, no lack of power in the court to act after one year when the judgment is irregular, and the facts and circumstances justify and require it. There are numerous decisions in our own Court supporting the proposition as here stated. Wolfe v. Davis, supra; Cowles v. Hayes,69 N.C. 406; authorities cited in Clark's Code (3 Ed.), pp. 321, 322, 323. It cannot be successfully maintained that this is not an irregular judgment. It is a judgment by default final in an action to recover land, and at the time the same was rendered the defendant had an answer on file, properly verified, denying specifically the plaintiff's allegations, and setting up a further defense, meritorious if it can be established as alleged. More than this, the defendant had at the time, on file, a defense bond in proper amount and form, and no action of the court had been taken to strike out his answer nor to assail the validity of his bond. True, the bond had not been justified, and the plaintiff had caused to be entered on the back of it, "Plaintiff comes into court and by his attorney excepts to the filing of this bond, 3 December, 1902." But no action of the court had ever been taken in (563) reference to it, so far as the record discloses.

While the section of The Code relating to this question seems to require that said bond shall be justified in the first instance by at least one of the sureties swearing that he is worth double the amount therein specified (Clark's Code, secs. 237, 390, 560), a failure to do this does not necessarily avoid the bond. It is a defect which may be cured by waiver. McMillan v. Baker, 92 N.C. 110. The exception noted on the back of the bond by plaintiff's counsel does not point at all to the sufficiency of the sureties, certainly not in terms, and if it were otherwise, after a defense bond is received and filed, such objection, we think, on a fair interpretation of the statute, could only be made good by some action of the court on notice duly given.

In the order appointing a receiver, made at November Term, 1902, the judge had provided that if the defendant should file a justified bond for "purposes of receiver," the appointment of such receiver should be vacated; but this was a privilege granted to the defendant, which in its purpose and terms was confined to the question of receivership, and did not profess to pass on the undertaking as a general defense bond. Even when an answer has been filed without any bond, and has remained on file for some time without objection, it is held to be irregular to strike it out and give judgment without notice or rule to show cause, or without giving the defendant opportunity to file a defense bond. McMillan v. Baker, 92 N.C. 111;Cooper v. Warlick, 109 N.C. 672.

The Court must not be understood as intimating that the plaintiff is required to go on and incur the expense of a trial when there is no bond, or only an insolvent bond given to protect him. The court has ample power to require a bond to be justified or a new bond to be given, (564) and, under certain circumstances, that the same should be enlarged. Vaughan v. Vincent, 88 N.C. 116. But this should be done by some action of the court, and usually after notice and some evidence offered; and when a motion to that effect is made and properly supported, it is the duty of the court to see that the plaintiff is protected by a justified and solvent bond. But when a bond has been received and filed, and an answer also filed raising material issues, and no preliminary order of the court made in reference to either, the defendant is entitled to have the issues raised by his answer properly considered and disposed of, and it is irregular to give judgment by default final against him, ignoring his answer and all issues therein raised. McMillan v. Baker,Cooper v. Warlick, and Wolfe v. Davis, supra.

It is the opinion of the Court that there was error in the order of his Honor declining to set aside the judgment for lack of power; and that on the facts disclosed in this record and case on appeal the judgment by default final entered against the defendant at January (Special) Term, 1903, should be set aside.

Let this be certified to the end that such judgment be set aside and the cause proceeded with in accordance with this opinion and the course and practice of the court.

Error.

Cited: S. c., 142 N.C. 172; Flowers v. King, 145 N.C. 235; Cowan v.Cunningham, 146 N.C. 454; Calmes v. Lambert, 153 N.C. 253; Miller v.Curl, 162 N.C. 4; Cox v. Boyden, 167 N.C. 321; Estes v. Rash, 170 N.C. 342;Lee v. McCracken, ib., 596; Gill v. Porter, 174 N.C. 570;Jernigan v. Jernigan, 178 N.C. 83; Bostwick v. R. R., 179 N.C. 487;Gough v. Bell, 180 N.C. 270.

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