Finger v. Smith, 191 N.C. 818 (N.C. 1926)

Adams, J.

The defendant’s answer was served on the plaintiff’s counsel and duly filed on 6 January, 1926, and the plaintiff was entitled to ten days thereafter in which to demur or reply, or to twenty days if the answer set up a counterclaim. 3 C. S., 524; Laws 1924, Ex. Ses., ch. 18. A reply was not filed within twenty days and on 1 February the clerk entered judgment by default final against the plaintiff and dismissed her action. On motion of the plaintiff he afterwards set this judgment aside; but on the defendant’s appeal the judge vacated the latter judgment and held that as to the first judgment the plaintiff’s remedy then applicable was by exception and appeal. It therefore becomes necessary to inquire into the nature of this judgment.

A judgment may be valid and unassailable, or it may be irregular, erroneous, or void. An irregular judgment is one rendered contrary to the course and practice of the court, as for example, at an improper time; or against an infant without a guardian; or by the court on an issue determinable by the jury; or where a plea in bar is undisposed of; or where the debt sued on has not matured; and in other similar cases. Skinner v. Moore, 19 N. C., 138, 156; Winslow v. Anderson, 20 N. C., 1; Keaton v. Banks, 32 N. C., 381; Cowles v. Hayes, 69 N. C., 406; Wolfe v. Davis, 74 N. C., 597; Larkins v. Bullard, 88 N. C., 35; Williamson v. Hartman, 92 N. C., 236; Stafford v. Gallops, 123 N. C., 19; Duffer v. Brunson, 188 N. C., 789.

An erroneous judgment is one rendered according to the course and practice of the court, but contrary to law, or upon a mistaken view of the law, or upon an erroneous application of legal principles, as where judgment is given for one party when it should have been given for another; or where the pleadings require several issues and only one. is submitted; or where the undenied allegations of the complaint are not sufficient to warrant a recovery; and in other cases involving a mistake of law. White v. Albertson, 14 N. C., 241, 244; Wolfe v. Davis, supra; Koonce v. Butler, 84 N. C., 222; Spillman v. Williams, 91 N. C., 483; May v. Lumber Co., 119 N. C., 96; Cowles v. Cowles, 121 N. C., 272; Stafford v. Gallops, supra; Becton v. Dunn, 142 N. C., 172; Rawles v. Mayo, 163 N. C., 177. A judgment may be regular and at the same time erroneous; that is, it is not irregular because it may happen to be erroneous. Error does not necessarily constitute irregularity or necessarily enter into it. Skinner v. Moore, supra; Dobbin v. Gaster, 26 N. C., 71.

A void judgment is one that has semblance but lacks some essential element, as jurisdiction or service of process. McKee v. Angel, 90 N. C., 60; Duffer v. Brunson, supra.

If a judgment is irregular the remedy is by a motion in the cause made within a .reasonable time; if erroneous, the remedy is by appeal. Spillman v. Williams, supra; May v. Lumber Co., supra; Henderson v. Moore, 125 N. C., 383.

It is important to remember that the plaintiffs object was to enforce the specific performance of the option and that by way of avoidance the defendant pleaded, not only the plaintiff’s failure to execute a proper deed of trust, but her fraudulent representation, as an inducement to the contract, that she was not a married woman. The ground upon which the defendant moved for judgment against the plaintiff was the absence of a reply to the alleged counterclaim. It is apparent, then, that the judgment dismissing the action was not void; the defendant’s motion presented a question which it was the duty of the clerk to decide. The authorities hold that the mere fact that a pleading does not state a cause of action does not make a default judgment void if the allegations are sufficient to challenge the attention of the court and invoke its judicial action to determine the sufficiency thereof, because a court having jurisdiction of the parties and the subject-matter may determine for itself the sufficiency of the pleading. 3 Freeman on Judgments (5 ed.), sec. 1297; 33 C. J., 1133, sec. 81.

It is equally conclusive, we think, that the judgment was not irregular. The clerk had express statutory authority to render a judgment by default; his judgment was not given contrary to the course and practice of the court. 3 C. S., 593. His error, if he committed error, arose from

the inadvertent misapplication of legal principles; and finder -all tbe authorities his mistaken view of the law, if he was mistaken, resulted in an erroneous judgment, as to which the plaintiff’s remedy was by appeal and not by motion in the cause.

This view of the case relieves us of the necessity of deciding whether the answer sets up a counterclaim in the nature of a cross-action to remove a cloud from the defendant’s title and whether the clerk’s first judgment was free from error. McLamb v. McPhail, 126 N. C., 218, 221; Turner v. Livestock Co., 179 N. C., 457; C. S., 1743. The judgment is

Affirmed.