Practice — Irregular Judgment — Motion to Set Aside Judgment — Valid Defense.
1. Where a judgment "final," instead of "by default and enquiry," was rendered on an open account on failure of the defendants to appear, it was error to set aside on motion which was not put upon the ground of mistake, surprise or excusable neglect, or upon a showing of a valid defense. In such case the validity of the defense is for the Court and not for the party to determine.
2. In such case, any questions of lien, homestead rights, etc., that might arise, cannot be considered until execution shall have been issued.
FAIRCLOTH, C. J.
As we understand it, the plaintiffs obtained a judgment "final on an open account," the defendants having failed to answer the complaint. This was irregular. Code, secs. 385, 386; Witt v. Long, 93 N.C. 388. The judgment should have been by "default and inquiry." At a subsequent time the defendants made a motion to have the judgment vacated and set aside on the ground of irregularity in entering a judgment "final."
The motion is not put upon the ground of mistake, surprise or excusable neglect. The Court vacated and set aside the judgment. This was error. The Court having jurisdiction of the subject and the parties, there is a presumption in favor of its judgment, and the burden of overcoming this presumption is with the party seeking to set aside the judgment. He must set forth facts showing prima facie a valid defense, and the validity of the defense is for the Court and not with the party. Although there was irregularity in entering the judgment, yet, (170) unless the Court can now see reasonably that defendants had a good defense, or that they could now make a defense that would affect the judgment, why should it engage in the vain work of setting the judgment aside now, and then be called upon soon thereafter to render just such another between the same parties? To avoid this, the law requires that a prima facie valid defense must be set forth. Jarman v. Saunders, 64 N.C. 367; English v. English, 87 N.C. 497; Mauney v. Gidney, 88 N.C. 200.
In this case the affidavit does not suggest that there is any mistake in the amount, nor that there is any defense that can be made.
The question of lien, homestead rights and some others are suggested in the case, but these will not call for consideration until further proceedings are had below. About these matters the parties will proceed as they are advised, when the judgment is restored and executionary process has been issued.
The order vacating the judgment is reversed.
Reversed.
Cited: Junge v. McKnight, 135 N.C. 117; Glisson v. Glisson, 153 N.C. 188; Currie v. Mining Co., 157 N.C. 220; Hardware Co. v. Buhmann, 159 N.C. 513; Harris v. Bennett, 160 N.C. 347; Hyatt v. Clark, 169 N.C. 179; Miller v. Smith, ib., 210.