#### MRS. C. R. DUFFER et al. v. A. J. BRUNSON.

(Filed 19 December, 1924.)

1. Judgments — Motions to Set Aside — Irregular Judgments — Pleadings.

A judgment by default and inquiry entered in plaintiff’s favor for tbe want of an answer after tbe return day of tbe summons, without more, is an irregular judgment, not rendered in tbe due course and practice of tbe courts, and tbe remedy of defendant is by motion to set it aside made in tbe original action.

2. Same — Meritorious Defense.

Tbe movant, to set aside an irregular judgment, must show be bas a meritorious defense as well as that be bas acted with reasonable promptness.

*7903. Sam© — Orders'—Appeal and Error.

The finding by tbe trial court, on defendant’s motion to set aside an irregular judgment, tbat be bad shown a meritorious defense in one involving a question of mixed law and fact, will be overruled on appeal when there is no evidence to support tbe finding, it being required that tbe defendant set forth facts showing prima facie a valid defense, to be passed upon by the court.

Appeal by plaintiffs from Granmer, J., at March Term, 1924, of CumbeRLANB. Action to recover land and damages.

Tbe summons, issued 21 April, 1923, was returnable 10 May, 1923. It was served on tbe defendant 27 April, 1923. Tbe complaint was filed 30 May, 1923. Tbe defendant filed no answer and made no motion to dismiss. On 9 July, 1923, on motion of tbe plaintiffs, tbe clerk rendered judgment by default and inquiry in wbicb be recited tbe service of summons, tbe filing of tbe complaint and tbe want of an answer, and adjudged tbat tbe plaintiffs are tbe owners of and entitled to tbe possession of tbe land described in tbe complaint and to tbe recovery of rents and profits, and in order tbat a jury might determine tbe amount of such recovery, tbe case was transferred to tbe civil docket.

On 18 December, 1923, tbe defendant made a motion before tbe clerk to set aside tbe judgment. Tbe defendant and bis attorney filed affidavits stating tbat on tbe return day of tbe summons they went to tbe clerk’s office to file an answer and found tbat tbe complaint bad not been filed; tbat as late as 7 p. m. they could not find any order extending tbe time for filing tbe complaint; and tbat tbe defendant knew nothing more about tbe case until 18 December, 1923, when be discovered tbe judgment while be and bis attorney were examining tbe records in reference to another matter. Tbe plaintiff’s counsel filed a counter-affidavit.

Tbe clerk set aside tbe judgment on tbe ground tbat it bad been erroneously and irregularly entered and held tbat it was null and void, and granted tbe defendant 20 days in wbicb to file an answer.

Tbe plaintiffs then appealed to tbe Superior Court in term, and tbe defendant’s counsel filed an additional affidavit to tbe effect tbat be bad investigated tbe defense and bad found tbe defendant “has a good and sufficient deed covering tbe lands described in tbe complaint and has been in possession of said lands under said deed for quite a while and is still in possession.” He expressed tbe opinion tbat tbe defense was bona fide and good in law, and tbat if an answer were filed, it would raise matters tbat'should be.submitted to a jury.

Tbe trial judge recited tbe substance of tbe affidavits, found as a fact tbat tbe clerk bad not extended tbe time for filing tbe complaint, held tbat tbe defendant has a bona fide defense, and affirmed tbe clerk’s judgment. Tbe plaintiffs excepted and appealed.

*791 A. M. Moore for plaintiffs.

Cooh & Gook for defendant.

Adams, J.

Under the amended statutes relating to process and pleadings the complaint should be filed on or before the return day of the summons, but the clerk for good cause may extend the time to a day certain. In the present case, the clerk did not grant an extension of. time and the complaint was filed 20 days after the return day. The defendant neither answered nor moved to dismiss; and after the lapse of several weeks the clerk rendered a judgment by default and inquiry. The lower court held that the clerk’s judgment was null and void and set aside the judgment.

A void judgment is one that has merely semblance without some essential element or elements, as a want of jurisdiction or a failure to serve process or otherwise to have the party in court. An irregular judgment is one entered contrary to the course and practice of the court; and an erroneous judgment is one rendered contrary to law. A void judgment may be collaterally impeached, but an irregular judgment should be attacked by motion in the cause, and an erroneous judgment should be corrected by appeal or certiorari. Moore v. Packer, 174 N. C., 665. The clerk’s judgment was not void, but irregular; it was entered contrary to the statute and in disregard of the usual practice. Indeed, in his brief the defendant admits the judgment was merely irregular.

But mere irregularity is not sufficient to warrant an order setting aside the judgment. It is essential for the moving party to show not only that he has acted with reasonable promptness, but that he has a meritorious defense against the judgment. As suggested in Harris v. Bennett, 160 N. C., 339, 347, “Unless the Court can now see reasonably that defendants had a good defense that would affect the judgment, why should it engage in the vain work of setting the judgment aside?” Hill v. Hotel Co., ante, 586; Gough v. Bell, 180 N. C., 268; Rawls v. Henries, 172 N. C., 216; Glisson v. Glisson, 153 N. C., 185.

The defendant has not shown a meritorious defense. His first two affidavits relate only to an inquiry or search in the clerk’s office for the plaintiff’s complaint. The third, which was offered on the hearing before the judge* was made by the defendant’s attorney, who stated that he had investigated the proposed defense and had found that the defendant had a good and sufficient deed for the land in controversy and had been in possession “for quite a while” and was still in possession. The trial judge found that the defense is bona fide, but this is a mixed question of law and fact, and there is no sufficient evidence to support *792the finding. “Quite a while” is indefinite. It is not alleged that the defendant’s possession is or has been adverse, or that it has covered the statutory period. Nor is the title of the plaintiffs denied. It has been held many times that the defendant must set forth facts showing prima facie a valid defense and that the validity of the defense is for the court and not with the party. Jeffries v. Aaron, 120 N. C., 167.

Section 600 of the Consolidated Statutes, relating to mistake, surprise, and excusable neglect, has no application to an irregular judgment. Becton v. Dunn, 137 N. C., 559. There is no finding that the defendant’s failure to look after his case from May 10th to December 18th was excusable. In fact, the judgment was set aside, not for excusable neglect, but on the ground of irregularity. There was error, for which the judgment is

Reversed.