
    Sexton v. Burruss et al.
    
   Hill, J.

A petition prayed for an injunction to restrain the sale of cer tain land levied on under a mortgage fi. fa., and to set aside the judgment foreclosing the mortgage. The petition alleged, that, upon service of the rule nisi in the foreclosure proceeding, the petitioner’s attorney at law prepared and sent to the clex-k of the superior court, with order to mark the same “filed,” her answer and defense to the foreclosure, which, among other gx-ounds, averred that the mortgage was void for the reason that it purported to be executed on property that was duly set apart by the ordinary as a year’s support to the minor children of the petitioner; that at the trial term her attoxmey was seriously ill and unable to attend court, and this fact was well known to counsel on the opposite ■ side, and the judge of the court also was infoimxed of the fact by counsel for petitioner and by her husband, and the judge, assuming that a defense had been filed in the case for which a eontiixuance was asked, informed the husband that the ease would be continued; that when the case was called in its order for trial, the clerk announced .that it was in default, and thereupon counsel for the mox-tgagee entered xxp judgment of foreclosure, and the fi. fa. was issued and levied; that the announcement that the case was in default “was a mistake of the clerk” in no way caused by the negligence or fault of the petitioner; that she had “sent to the clerk a complete defense to the foreclosure of the mortgage,” and that she was prevented from availing herself of it by his mistake. A general demurrer to the petition was sustained, and the plaintiff excepted. Eeld: Construing the allegations of the petition that the answer to the foreclosure proceeding (which, if true, was meritorious) was sent to the clerk of the court, and that he “made a mistake” in announcing to the court that the case was in default, to mean that the defendant in fi. fa. had filed a meritorious answer to the foreclosure proceedings, and that tlie default judgment was entered by reason of the mistake of the clerk in announcing to the contrary, the court erred'in sustaining the general demurrer.

November 11, 1915.

Equitable petition. Before Judge Patterson. Forsyth superior court. August 26, 1914.

Henry N. Kirby, for plaintiff.

G. L. Harris and George F. Gober, for defendants.

Judgment reversed.

All the Justices concur, except Beeh, J., absent.  