26 S.E. 696 | N.C. | 1897
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; Witt v. Long,
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 defense, and the validity of the defense is for the Court and not with the party. Although there was irregularity in entering the judgment, yet, (170) unless the Court can now see reasonably that defendants had a good defense, or that they could now make a defense 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 defense must be set forth. Jarman v. Saunders,
In this case the affidavit does not suggest that there is any mistake in the amount, nor that there is any defense that can be made. *117
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.
Cited: Junge v. McKnight,
