Jeffries v. . Aaron

26 S.E. 696, 120 N.C. 167

Opinion

Faircloth, 0. J.:

As we understand it, the plaintiffs obtained a judgment “final on an open account,” the defendants having failed to answer the complaint. This was irregular. Code, Secs. 385, 386; Wittv. Long, 93 íí. C., 388. The judgment should have been by “default and inquiry.” At a subsequent time, the defendants made a motion to have the judgment vacated ana set aside on the ground of irregularity in entering a judgment “final.”

The motion is not put upon the ground of mistake, surprise or excusable neglect. The court vacated and set aside the judgment. This was error. The court having jurisdiction of the subject and the parties, there is a presumption in favor of its judgment, and the burden of overcoming this presumption is with the party seeking to set aside the judgment. He must set forth facts showing prima facie a valid defence, and the validity of the defence is for the court, and not with the party. Although there was irregularity in entering the judgment, yet unless the court can now see reasonably that defendants had a good defence, or that they could now make a defence that would affect the judgment, why should it engage in the vain work of setting the judgment aside now, and then be called upon soon thereafter to render just such another between the same parties? To avoid this, the law requires that a prima, facie valid defence must be set forth. Jarman v. Saunders, 64 N. C., 367; English v. English, 87 N. C., 497; Mauney v. Gidney, 88 N. C., 200.

In this case the affidavit does not suggest that there is any mistake in the amount, nor that there is any defence that can be made.

The question of lien, homestead rights and some others are suggested in the case, but these will not call for consideration until further proceedings are had below. About these matters the parties will proceed as they are advised, when the judgment is restored and executionary process has been issued.

The order vacating the judgment is reversed.

Reversed.