DeNNY, J.
If the judgment entered in this proceedings at the December Civil Term, 1940, of the Superior Court of Robeson County, is irregular, the motion to set it aside should have been allowed,
The appellees contend that the appellants are relying solely for relief upon the authority to set aside a judgment under the provisions of C. S., section 600; and that an application for relief thereunder is addressed to the sound discretion of the trial judge.
Bank v. Foote,
77 N. C., 131;
Norton v. McLaurin,
125 N. C., 185, 34 S. E., 269;
Dunn v. Jones,
195 N. C., 354, 142 S. E., 320. It is further contended .that the appellants were negligent in that they failed to employ counsel, and that the courts will come to the aid of a party who has been made the victim of the negligence of an attorney under contract; but not where the party failed to employ counsel and relied on the advice of court officials, attorneys of record in the case or other attorneys not employed by the party. We concede that it is unsafe practice for parties to a legal proceedings in court to fail to employ competent counsel to represent them. However, the facts as disclosed in this proceedings, in the record and briefs, make it unnecessary for the appellants to rely upon excusable neglect in order to obtain the relief sought. “Section 600 of the Consolidated Statutes, relating to mistake, surprise and excusable neglect, has no application to an irregular judgment.”
Duffer v. Brunson,
188 N. C., 789, 125 S. E., 619;
Becton v. Dunn,
137 N. C., 559, 50 S. E., 289.
In the case of
Carter v. Rountree,
109 N. C., 29, 13 S. E., 716, the Court said: ’“Judgments may be void, irregular or erroneous. A void judgment is one that has merely semblance, without some essential element or elements, as where the court purporting to render it has not jurisdiction. An irregular judgment is one entered contrary to the course of the court — contrary to the method of procedure and practice under it allowed by law in some material respect; as if the court gave judgment without the intervention of a jury in a case where the party complaining was entitled to a jury trial and did not waive his right to the same.
Vass v. Building Assn.,
91 N. C., 55;
McKee v. Angel,
90 N. C., 60. An erroneous judgment is one rendered contrary to law. The latter cannot be attacked collaterally at all, but it must remain and have
effect
until by appeal to a court of errors it shall be reversed or
modified. An irregular judgment may ordinarily and generally be set aside by a motion for tbe purpose in the action.”
The appellees in the instant case contend that since the judgment followed the verdict and no motion has been made to set aside the verdict, if the judgment is set aside the verdict will still stand and judgment would have to be re-entered in accordance with the jury’s finding. They further contend that the judgment recites the fact that a verdict was rendered which negatives any contention that the judgment was by default.
It seems to be the general rule that where no answer is filed the petitioner is limited to the relief demanded in the petition. But if the respondent answers, the court may grant any relief which is consistent and embraced within the issues raised by the pleadings. Where, however, respondent does not answer, but makes default, the relief granted to petitioner cannot exceed that which he has demanded and that necessarily incident thereto. A judgment by default in violation of this rule is irregular and erroneous. 33 C. J., Judgments, sec. 89, p. 1146, and again, in sec. 101, p. 1163: “In amount, as in other respects, a judgment must conform to, and be supported by, the pleadings and the proof. A judgment without proof for more than the amount admitted to be due cannot stand, and a judgment for less than the proof warrants is erroneous.”
The petitioner, where no answer is filed, is prohibited by statute and the decisions of this Court from obtaining relief in excess of that demanded in the petition. Consolidated Statutes of North Carolina, sec. 606, provides: “The relief granted to the plaintiff, if there is no answer, cannot exceed that demanded in his complaint; but in any other case the court may grant him any relief consistent with the case made by the cpmplaint and embraced within the issue.”
When respondents do not answer, they are concluded by the decree only so far as it is supported by the allegations in the petition, and if it gives relief in excess of or different from that which the petitioner is entitled to under the petition, it may be set aside. McIntosh N. C. Prac.
&
Proc., 714;
Jones v. Mial,
82 N. C., 252;
Junge v. MacKnight,
137 N. C., 285, 49 S. E., 474;
Currie v. Mining Co.,
157 N. C., 209, 72 S. E., 980;
Land Bank v. Davis,
215 N. C., 100, 1 S. E. (2d), 350.
A judgment is irregular which is entered on a verdict not bottomed on or supported by the pleadings. In this case no evidence was offered for the consideration of the jury. The verdict of the jury justifies but one conclusion. It is apparent that the answers to the issues were reached pursuant to the consent of those parties to be benefited thereby, rather than pursuant to proper allegations and supporting evidence. If this is not the fact, how then did the jury reach such a verdict? There are
approximately eighty-five parties to this proceedings. The petitioners and all the answering respondents, except David Carter and Winston Carter, allege or admit that all the parties to this proceedings are tenants in common, are owners and in possession of the lands described in the petition. David Carter and Winston Carter allege in their answer that Nelson Smith and wife, Eliza Smith, are dead and left surviving them only two heirs, to wit, Frances Smith French and Carolina Smith Carter; and that the heirs of Frances Smith French are seized and possessed of a one-half interest in the aforesaid lands, and that David and Winston Carter are seized and possessed of a one-half interest in said lands. These respondents further allege that they and the heirs of Frances Smith French have been in open, notorious, adverse and continuous possession of the lands described in the petition for more than twenty years, and plead the statute as a bar of any interest which the other respondents might have had in said lands.
The amended petition alleges that David Carter is entitled to a one-one-hundred-and-fortieth interest in said lands, and Winston Carter and others, as a class, are entitled to a one-thirty-fifth interest in said lands. The verdict of the jury is not supported by a single allegation in the amended petition or in the answers filed by the answering respondents. Why were issues not submitted on the cross action and the plea of title by adverse possession? Under the verdict of the jury, the heirs of Bill Smith are adjudged the owners of a one-fifth interest in said lands; whereas, in the answer of David and Winston Carter, it is alleged that Nelson Smith and wife, Eliza Smith, left only two heirs, to wit, Frances Smith French and Carolina Smith Carter.
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DeNNY, J.
If the judgment entered in this proceedings at the December Civil Term, 1940, of the Superior Court of Robeson County, is irregular, the motion to set it aside should have been allowed,
The appellees contend that the appellants are relying solely for relief upon the authority to set aside a judgment under the provisions of C. S., section 600; and that an application for relief thereunder is addressed to the sound discretion of the trial judge.
Bank v. Foote,
77 N. C., 131;
Norton v. McLaurin,
125 N. C., 185, 34 S. E., 269;
Dunn v. Jones,
195 N. C., 354, 142 S. E., 320. It is further contended .that the appellants were negligent in that they failed to employ counsel, and that the courts will come to the aid of a party who has been made the victim of the negligence of an attorney under contract; but not where the party failed to employ counsel and relied on the advice of court officials, attorneys of record in the case or other attorneys not employed by the party. We concede that it is unsafe practice for parties to a legal proceedings in court to fail to employ competent counsel to represent them. However, the facts as disclosed in this proceedings, in the record and briefs, make it unnecessary for the appellants to rely upon excusable neglect in order to obtain the relief sought. “Section 600 of the Consolidated Statutes, relating to mistake, surprise and excusable neglect, has no application to an irregular judgment.”
Duffer v. Brunson,
188 N. C., 789, 125 S. E., 619;
Becton v. Dunn,
137 N. C., 559, 50 S. E., 289.
In the case of
Carter v. Rountree,
109 N. C., 29, 13 S. E., 716, the Court said: ’“Judgments may be void, irregular or erroneous. A void judgment is one that has merely semblance, without some essential element or elements, as where the court purporting to render it has not jurisdiction. An irregular judgment is one entered contrary to the course of the court — contrary to the method of procedure and practice under it allowed by law in some material respect; as if the court gave judgment without the intervention of a jury in a case where the party complaining was entitled to a jury trial and did not waive his right to the same.
Vass v. Building Assn.,
91 N. C., 55;
McKee v. Angel,
90 N. C., 60. An erroneous judgment is one rendered contrary to law. The latter cannot be attacked collaterally at all, but it must remain and have
effect
until by appeal to a court of errors it shall be reversed or
modified. An irregular judgment may ordinarily and generally be set aside by a motion for tbe purpose in the action.”
The appellees in the instant case contend that since the judgment followed the verdict and no motion has been made to set aside the verdict, if the judgment is set aside the verdict will still stand and judgment would have to be re-entered in accordance with the jury’s finding. They further contend that the judgment recites the fact that a verdict was rendered which negatives any contention that the judgment was by default.
It seems to be the general rule that where no answer is filed the petitioner is limited to the relief demanded in the petition. But if the respondent answers, the court may grant any relief which is consistent and embraced within the issues raised by the pleadings. Where, however, respondent does not answer, but makes default, the relief granted to petitioner cannot exceed that which he has demanded and that necessarily incident thereto. A judgment by default in violation of this rule is irregular and erroneous. 33 C. J., Judgments, sec. 89, p. 1146, and again, in sec. 101, p. 1163: “In amount, as in other respects, a judgment must conform to, and be supported by, the pleadings and the proof. A judgment without proof for more than the amount admitted to be due cannot stand, and a judgment for less than the proof warrants is erroneous.”
The petitioner, where no answer is filed, is prohibited by statute and the decisions of this Court from obtaining relief in excess of that demanded in the petition. Consolidated Statutes of North Carolina, sec. 606, provides: “The relief granted to the plaintiff, if there is no answer, cannot exceed that demanded in his complaint; but in any other case the court may grant him any relief consistent with the case made by the cpmplaint and embraced within the issue.”
When respondents do not answer, they are concluded by the decree only so far as it is supported by the allegations in the petition, and if it gives relief in excess of or different from that which the petitioner is entitled to under the petition, it may be set aside. McIntosh N. C. Prac.
&
Proc., 714;
Jones v. Mial,
82 N. C., 252;
Junge v. MacKnight,
137 N. C., 285, 49 S. E., 474;
Currie v. Mining Co.,
157 N. C., 209, 72 S. E., 980;
Land Bank v. Davis,
215 N. C., 100, 1 S. E. (2d), 350.
A judgment is irregular which is entered on a verdict not bottomed on or supported by the pleadings. In this case no evidence was offered for the consideration of the jury. The verdict of the jury justifies but one conclusion. It is apparent that the answers to the issues were reached pursuant to the consent of those parties to be benefited thereby, rather than pursuant to proper allegations and supporting evidence. If this is not the fact, how then did the jury reach such a verdict? There are
approximately eighty-five parties to this proceedings. The petitioners and all the answering respondents, except David Carter and Winston Carter, allege or admit that all the parties to this proceedings are tenants in common, are owners and in possession of the lands described in the petition. David Carter and Winston Carter allege in their answer that Nelson Smith and wife, Eliza Smith, are dead and left surviving them only two heirs, to wit, Frances Smith French and Carolina Smith Carter; and that the heirs of Frances Smith French are seized and possessed of a one-half interest in the aforesaid lands, and that David and Winston Carter are seized and possessed of a one-half interest in said lands. These respondents further allege that they and the heirs of Frances Smith French have been in open, notorious, adverse and continuous possession of the lands described in the petition for more than twenty years, and plead the statute as a bar of any interest which the other respondents might have had in said lands.
The amended petition alleges that David Carter is entitled to a one-one-hundred-and-fortieth interest in said lands, and Winston Carter and others, as a class, are entitled to a one-thirty-fifth interest in said lands. The verdict of the jury is not supported by a single allegation in the amended petition or in the answers filed by the answering respondents. Why were issues not submitted on the cross action and the plea of title by adverse possession? Under the verdict of the jury, the heirs of Bill Smith are adjudged the owners of a one-fifth interest in said lands; whereas, in the answer of David and Winston Carter, it is alleged that Nelson Smith and wife, Eliza Smith, left only two heirs, to wit, Frances Smith French and Carolina Smith Carter. The amended petition sets forth with the same clarity the interests of the appellants herein, that it does the interest of the appellees, and since all the allegations in the pleadings were completely ignored by the jury, and no evidence was offered at the trial of this cause, unquestionably the jury was directed to answer the issues as they appear in the record.
The pleadings disclose that David Carter and Winston Carter are lineal descendants of Carolina Smith Carter, who is dead, leaving many other heirs who are parties to this proceedings. David and Winston Carter, under the verdict herein, are adjudged to be the owners of a one-fifth interest each in the lands in controversy. All the other heirs of Carolina Smith Carter are excluded by the verdict from any interest in said lands. The pleadings further disclose Pattie Sampson, James Smith and Hardy Smith, children of Nelson Smith and wife, Eliza Smith, are dead, but each of them left heirs who are parties to this proceedings. All the heirs of these three children of Nelson Smith and wife, Eliza Smith, are also excluded by the verdict from any interest in said lands.
No satisfactory explanation, other than that heretofore suggested, can be given for a verdict and judgment barring the appellants of their interest in the estate of Nelson Smith and wife, Eliza Smith.
The judgment entered herein is irregular, but a judgment will not be set aside for irregularity alone. This Court said, in
Duffer v. Brunson, supra:
“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 allegations in the verified motion upon the
quantum
of interest of the. appellants in the lands in controversy, which allegations are supported by the facts alleged in the amended petition, are sufficient to show a meritorious defense.
The appellants except to the irregular procedure incident to the appointment and acts of the guardian
ad litem.
The guardian
ad litem
was appointed the day the case was tried. He accepted service of summons, copies of the pleadings, and filed his answer the same day. No such haste is contemplated under the provisions of Consolidated Statutes of North Carolina, section 451. In the case of
Moore v. Gidney,
75 N. C., 34, the Court said: “When infant defendants, in a civil action or special proceeding, have no general or testamentary guardian, before a guardian
ad litem
can be appointed, a summons must be served upon such infant, and a copy of the complaint also be served or filed according to law. After the guardian
ad litem
is thus appointed in a special proceeding,' a copy of the complaint, with the summons, must be served on the guardian. All this does not give the court jurisdiction to proceed at once in the cause; for it is further provided, that not until after twenty days’ notice of said summons and complaint, and after answer filed, can the Court proceed to final judgment and decree therein. . . . So careful is the law to guard the rights of infants, and to protect them against hasty, irregular and indiscreet judicial action. Infants are, in many cases, the wards of the courts, and these forms, enacted as safeguards thrown around the helpless, who are often the victims of the crafty, are enforced as being mandatory, and not directory, only. Those who venture to act in defiance of them, must take the risk of their action being declared void, or set aside.”
Welch v. Welch,
194 N. C., 633, 140 S. E., 436.
Upon filing an answer a case is not at issue until after the expiration of ten days. C. S. of North Carolina, sec. 557;
Cahoon v. Everton,
187
N. C., 369, 121 S. E., 612. By consent of the parties, the provisions of the statute may be waived, but no such waiver appears here.
The only other exception we deem necessary to be considered is to the refusal of his Honor to make W. S. Britt, who holds a deed for the interests of David and Winston Carter in the lands in controversy and who purchased the said lands at the commissioner’s sale, pursuant to the verdict and judgment rendered in this cause, a party.
W. S. Britt is a necessary party to this proceedings and the motion of appellants to make him a party should have been allowed, unless all the parties to the proceedings ratify the sale and agree that their respective interests shall be transferred to the proceeds from said sale.
Currie v. Mining Co., supra.
We do not agree, however, with the contention of W. S. Britt that he is an innocent purchaser for value and entitled to protection as such. An attorney of record in a proceedings in which an irregular judgment is entered, who purchases property pursuant to the terms of said judgment, is necessarily charged with knowledge of all the facts and circumstances incident thereto, and is not an innocent purchaser.
The judgment herein is irregular, the appellants have shown a meritorious defense, and the judgment below is
Reversed.