#### E. T. BILLINGS v. WESTLY JOINES.

(Filed 1 December, 1909.)

1. Judgments, Irregular — Irregular Process — Justice of the Peace— Procedure.

To set aside a judgment of a justice of tbe peace by default for irregularity upon the ground of irregular service of summons, the complaining party must proceed in due time to move before the justice to that end.

2. Judgments — Executions—Lands—Purchase Price — Homestead Exemption.

A judgment debtor cannot claim his homestead exemption in lands upon which execution has been issued under a valid judgment on his note given for their purchase price and so certified in the transcript docketed in the Superior Oourt.

3. Judgments Set Aside — Fraud—Allegations Necessary.

To invalidate a judgment for fraud it is necessary to allege the facts constituting the fraud with sufficient certainty and full*364ness to apprise the opposing party of what he is called upon to answer; and in an action to restrain an execution issued thereunder, the mere allegations that the judgment, is fraudulent, illegal and'void, and that the transcript, execution and levy and all other proceedings are illegal, are insufficient.

Appeal by defendant from Gouncill, J., August Term, 1909, of Wilkes.

Civil action, to- restrain tbe sale of certain lands under execution by tbe defendant, beard upon motion to continue tbe injunction to tbe final hearing. Tbe court continued tbe restraining order, and defendant appealed.

Tbe facts are stated in tbe opinion of tbe Court.

Haclceti & Gilreath for plaintiff.

W. W. Barber for defendant.

BkowN, J.

Tbe facts upon which tbe injunction is “based are about as follows: In March, 1905, tbe defendant obtained judgment against the plaintiff for tbe balance due upon a note alleged to have been given for tbe purchase money of tbe land, tbe selling of which has been enjoined. Plaintiff appealed to tbe Superior Court, and bis appeal was dismissed. Tbe plaintiff now alleges that tbe ajipeal was dismissed at tbe instance of tbe defendant, who sent jdaintiff word not to attend court, as be should not attend, and that by means of this fraud practiced upon him defendant procured tbe dismissal of plaintiff’s appeal'. Tbe latter made no move to have tbe order of dismissal set aside.

This feature of tbe case is rendered wholly immaterial by tbe fact that tbe defendant, on 18 March, 1907, commenced another action against plaintiff upon tbe same debt and as set out in tbe summons for “tbe sum of $76.20 due for former judgment and demanded by said plaintiff, which is for tbe purchase money of a tract of land in Trap Hill Township, N. C.”

Tbe record shows that this summons was returnable at tbe justice’s residence on 27 March, 1909, at 3 P. M., and that it was duly served on plaintiff by a deputy sheriff. Judgment was rendered for Joines, plaintiff therein, against Billings, and no appeal was taken.

In bis affidavit Billings admits that while be was waiting at Trap Hill, in pursuance of tbe notice given him by tbe deputy sheriff, tbe defendant, Joines, was up at the justice’s residence, and took judgment against him by default.

Tbe summons was returnable at tbe residence of tbe justice in Trap Hill Township, and plaintiff should have appeared there and made defense, if be bad any.

*365Plaintiff admits that he had notice of the action, and that it was given him by the officer. If there was any irregularity in the service of the summons, and the judgment by default was in consequence irregular, he should have proceeded in due time to move before the justice to set it aside. The record is regular and the judgment is valid on its face.

On 29 March, 1907, a transcript was duly docketed in the Superior Court, reciting, as it should, that the judgment was rendered for the purchase money of the tract of land described in the transcript. Execution was issued in due form and course, and it is this execution the plaintiff seeks to enjoin.

The plaintiff, in his affidavit, does not attempt to set up a defense to the defendant, even if he could do so at this late day and in this manner. He does not even deny that the note was given for the purchase money of the land, or that he went into possession under a contract of purchase. It is plain that, upon this record, plaintiff is not entitled to a homestead in the land. It is true that in one of his affidavits the plaintiff avers “that he is informed and believes the aforesaid second judgment is fraudulent, illegal and void, and that the transcript, execution, levy and all other proceedings are illegal,” but he sets out no facts whatever upon which to base his allegation of fraud. “It is no sufficient averment to allege in general terms that a judgment was procured by fraud; but the facts constituting the fraud must be set out with sufficient certainty and fullness to indicate the defense and apprise plaintiff of what he is called upon to answer.” Mr. Justice Hoke, in Mottu v. Davis, at this term.

"We are of opinion that the court below erred in granting the injunction, and the order is therefore

Eeversed.