Mills v. Richardson
81 S.E.2d 409
N.C.
1954
Check Treatment
Bobbitt, J.

Did the court below, at the Second February (1954) Civil Term, have authority, upon withdrawal of plaintiff’s appeal, to strike out the judgment dismissing the action entered at the First February (1954) Civil Term? Authoritative decisions compel a negative answer.

The plaintiff, having appealed from the judgment entered at the First February (1954) Term, elected to abandon or withdraw her appeal. She had a legal right to do so.

However, upon abandonment or withdrawal of her appeal, the judgment from which her appeal was taken remained unchallenged. This was a final judgment, which by its express terms sustained the demurrer and *190 dismissed tbe action. True, if it bad sustained tbe demurrer, without dismissing tbe action, tbe plaintiff, witbin thirty days from 2 February, 1954, upon notice, could have moved for leave to amend. G.S. 1-131. Harris v. Board of Education, 217 N.C. 281, 7 S.E. 2d 538.

Our decisions draw a distinction between (1) a defective statement of a good cause of action and (2) a statement of a defective cause of action. Davis v. Rhodes, 231 N.C. 71, 56 S.E. 2d 43, and cases cited. Scott v. Veneer Co., ante, 73. In each instance, tbe demurrer should be sustained. Where there is a defective statement of a good cause of action, tbe complaint is subject to amendment; and tbe action should not be dismissed until tbe time for obtaining leave to amend has expired. G.S. 1-131. But where there is a statement of a defective cause of action, final judgment dismissing tbe action should be entered.

In Davis v. Rhodes, supra, the plaintiff alleged that his intestate was killed by the negligence of the defendant in an automobile-motor scooter collision. The demurrer was sustained on the ground that the complaint did not set forth the facts constituting the alleged negligence. The trial judge dismissed the action. This Court reversed on the ground that, since the complaint was defective in its statement of a good cause of action, it was subject to amendment.

In Scolt v. Veneer Co., supra, this Court upheld the trial court in sustaining the demurrer and in dismissing the action since the allegations of the complaint affirmatively disclosed that there was a defective cause of action, i.e., that the plaintiff had no cause of action against the defendant.

As stated by Pearson, C. J., in Garrett v. Trotter, 65 N.C. 430: “When there is a defect in substance, as an omission of a material allegation in the complaint, it is a defective statement of the cause of action; and the demurrer must specify it, to the end that it may be amended by making the allegation. And when there is a statement of a defective cause of action, the demurrer must specify, to the end that as there is no help for it, the plaintiff must stop his proceeding without a further useless incurring of costs.”

Conceding, without deciding (see Wilson v. Dowtin, 215 N.C. 547, 2 S.E. 2d 576; Leavitt v. Rental Co., 222 N.C. 81, 21 S.E. 2d 890), that the amended complaint contained a defective statement of a good cause of action, the judgment at the First February (1954) Term, in respect of its dismissal of the action, was entered upon a mistaken principle of law or, as the plaintiff put it in her motion, “contrary to G.S. 1-131.”

The distinction between void, erroneous and irregular judgments was pointed out by Merrimon, G. J., in Carter v. Rountree, 109 N.C. 29, 13 S.E. 716, as follows: “A void judgment is one that has merely semblance, without some essential element or elements, as when the court purporting *191 to render it bas not jurisdiction. An irregular judgment is one entered contrary to tbe course of tbe court — contrary to tbe method of procedure and practice under it allowed by law in some material respect; as if tbe court gave judgment without tbe intervention of a jury in a case where the party complaining was entitled to a jury trial and did not waive bis right to tbe same. Vass v. Building Association, 91 N.C. 55; McKee v. Angel, 90 N.C. 60. An erroneous judgment is one rendered contrary to law. The latter cannot he attached collaterally at all, hut it must remain and have eff ect until hy appeal to a court of errors it shall he reversed or modified. An irregular judgment may ordinarily and generally be set aside by a motion for tbe purpose in tbe action. This is so because in such case tbe judgment was entered contrary to tbe course of tbe court by inadvertence, mistake or tbe like. A void judgment is without life or force, and tbe court will quash it on motion, or ex mero motu. Indeed, when it appears to be void, it may and will be ignored everywhere, and treated as a mere nullity.” (Emphasis added.) Tbe later decisions are in full accord: Stafford v. Gallops, 123 N.C. 19, 31 S.E. 265; Moore v. Packer, 174 N.C. 665, 94 S.E. 449; Duffer v. Brunson, 188 N.C. 789, 125 S.E. 619; Simms v. Sampson, 221 N.C. 379, 20 S.E. 2d 554. See McIntosh, N.C.P.&P. 734-737.

Tbe judgment entered at tbe First February (1954) Term was not void, for tbe court bad jurisdiction of tbe parties and over tbe subject matter. It was not irregular, for tbe cause came on regularly for bearing and was beard and judgment entered. Indeed, tbe appellee’s contention is that it was rendered contrary to law, that is, based upon an erroneous application of legal principles. Tbe order of 22 February, 1954, refers to tbe dismissal of tbe action as “erroneous.” If this be conceded, it was an erroneous judgment. Stafford v. Gallops, supra. In such case, upon expiration of tbe term at which tbe judgment was rendered, it could be corrected only by this Court; for as stated by Professor McIntosh, “after tbe term neither tbe judge who rendered tbe judgment nor another judge bolding tbe court can set it aside for such error, and tbe only remedy is an appeal or a certiorari as a substitute for an appeal.” McIntosh, N.C. P.&P., p. 736; Simmons v. Dowd, 77 N.C. 155; May v. Lumber Co., 119 N.C. 96, 25 S.E. 721; Henderson v. Moore, 125 N.C. 383, 34 S.E. 446; Becton v. Dunn, 142 N.C. 172, 55 S.E. 101; Caldwell v. Caldwell, 189 N.C. 805, 128 S.E. 329; Phillips v. Ray, 190 N.C. 152, 129 S.E. 177; Wellons v. Lassiter, 200 N.C. 474, 157 S.E. 434; Williams v. Williams, 190 N.C. 478, 130 S.E. 113; Clark v. Cagle, 226 N.C. 230, 37 S.E. 2d 672; Dellinger v. Clark, 234 N.C. 419, 67 S.E. 2d 448.

Tbe judgment entered at tbe First February (1954) Term, in consequence of tbe plaintiff’s withdrawal or abandonment of her appeal, being a final judgment dismissing tbe action, tbe court below was without *192 authority to reinstate the action and allow further amendment of the complaint. The order of 22 February, 1954, allowing plaintiff’s motion of 16 February, 1954, purported to do so. This affected a substantial right of the defendant. He was entitled to appeal therefrom. G.S. 1-277. His assignment of error is well taken and the order of 22 February, 1954, is

Beversed.