
    MARY LOU LEE et al. v. M. D. McCRACKEN.
    (Filed 12 January, 1916.)
    Judgment — Default—Excusable Neglect — Limitation of Actions — Statutes.
    Where a judgment by default final has been taken for the want of an answer, and it appears tbat summons bad been personally served, a verified complaint filed fully setting forth the facts entitling plaintiff to the judgment, the judgment being taken in the course and practice of the courts, is regular, and may not be set aside by motion for excusable neglect, etc., after one year from' its rendition, the time limited controlling. Revisal, sec. 513.
    MotioN to vacate a judgment by default final rendered in an action to set aside a deed and recover land, beard before Cline, J., first at Franklin, N, C., in chambers, by consent, where bis Honor made certain findings of fact relevant to inquiry, as appears of record. Tbe cause was then continued for further consideration at May Term, 1915, Superior Court of Haywood County, where tbe judgment in question bad been rendered and docketed, when bis Honor, on additional affidavits and testimony, made further findings of fact, and thereon entered judgment tbat the said judgment by default be set aside and defendant allowed to answer as be may be advised, and plaintiff excepted and appealed.
    W. J. Hannah and J-. M. Queen for plaintiff.
    
    
      J. W. Ferguson and Morgan & Ward for defendant.
    
   Hoke, J.

We are unable to concur in tbe view of this case which was taken in tbe court below, and are of opinion that, on tbe facts as found by bis Honor, be was without power to vacate tbe judgment. From a perusal of tbe findings of fact it appears that tbe judgment by default final was rendered and signed by Judge Garter at January Term, 1914, Superior Court of Haywood County, and, some fifteen months thereafter, tbe present motion was made and acted on at May Term, 1915, of said court; that tbe action was to set aside a deed for fraud and to recover possession of a tract of land conveyed by said deed, and summons was regularly issued and personally served on defendant in Haywood County, on 9 September, 1912, and verified complaint was then filed, fully setting out tbe facts and describing tbe land, and same was; cross-indexed and docketed on that date, tbe plaintiff seeking in this; way to establish a lis pendens in reference to tbe property; that tbe cause was continued from time to time until November, 1913, when Mr. Crawford, who bad been “spoken to by defendant” as attorney, died, and, two months thereafter, at January regular term, no answer or defense bond ever having been filed by defendant, bis Honor, on perusal of tbe verified complaint, found tbe facts to be as therein stated and entered tbe judgment by default final as prayed for.

Our statute in reference to proceedings of this character, Revisal,. sec. 513, provides that tbe judge may relieve a party from a judgment, etc., taken against him “through bis mistake, inadvertence, surprise, or excusable neglect,” at any time within one year after notice thereof, and in many decisions construing tbe law it has been held that where tbe judgment complained of is rendered on a summons personally .served within the jurisdiction this one-year period shall be estimated from its rendition, the party defendant in such case being affected with notice. Ins. Co. v. Scott; Clement v. Ireland, 129 N. C., 220; McLean v. McLean, 84 N. C., 366. True, it has also been repeatedly held that this restriction as to time prevails only in case of regular judgments, that is, such as are taken according to tbe course and practice of tbe courts, and, as to irregular judgments, that this statutory period does not necessarily apply. Calmes v. Lambert, 153 N. C., 248; Becton v. Dunn, 137 N. C., 559; Wolfe v. Davis, 74 N. C., 597. But, to our minds, this is a regular judgment, in which it appears that tbe summons was personally served within tbe jurisdiction of tbe court. Tbe verified complaint, duly filed, and the cause coming on for bearing at a regular term of tbe Superior Court, there being no answer filed or even a defense bond, tbe judge, having considered tbe allegations of tbe complaint, finds tbe essential facts alleged therein to be true, and enters judgment by default final according to the course and practice of the court. Junge v. MacKnight, 137 N. C., 285. This being true, the motion of defendant not having been made within a year, tbe court was without power in tbe premises, and the same should have been denied.

It is no answer to tbis position that the court, after finding that the complaint had been duly and regularly filed, finds further that defendant, having employed Mr. W. T. Crawford as his attorney in the case, that his attorney applied on several occasions at the clerk’s office for the complaint in order to answer, and it was not to be found there, and that defendant was with him on one or two occasions, and perhaps applied himself for the complaint, and the clerk could not find it in his office,” and the court, therefore, finds that defendant did not have an opportunity to answer the complaint. Eesponsibility for this condition is not fixed by the court, but, even if it was attributable to plaintiff or his counsel, the facts tending as they do to show that the complaint for a large part of the time was not in the clerk’s office, where it should have been, might very well support a conclusion that the judgment was taken against defendant by surprise or excusable neglect, but they do not at all seem to show that the judgment was irregular.

The case, therefore, comes within the statutory limitation, and the motion of defendant, as stated, should have been denied.

In Monroe v. Whitted, 79 N. C., 508, a case to which we were referred by appellant’s counsel, it appeared that no complaint was ever filed, and Bynum, J., delivering the opinion, among other things, said: “We are satisfied from the evidence that no pleadings were actually filed; that the entries on the docket were made by or under the direction of the plaintiff, and that, in point of fact, no judgment was ever rendered by the knowledge or sanction of the judge presiding. It was irregular, and ought to be set aside.” It thus appears that the case bears very little or no resemblance to that presented in this record.

We are confirmed in the disposition made of this appeal by other relevant facts recited in his Honor’s findings, that the defendant has never filed any answer or defense bond in the cause or made any motion for time or leave to do so, and that, although his counsel, Mr. W. T. Crawford, died in November, 1913, he did not employ any other counsel; that the judgment was rendered at the regular term of Haywood Superior Court, February Term, 1914, was duly docketed, cross-indexed, and defendant did not appear at said term or make any motion in the cause from the death of his counsel, in November, 1913, until he was ousted by writ of possession issued in March, 1915.

Hpon the facts it would be difficult to sustain a motion to set aside the judgment for excusable neglect or inadvertence, even if such course was now open to defendant.

There is error, and the judgment of his Honor in setting aside the former judgment is

Eeversed.  