We cannot agree in the conclusion reached by his Honor. It does not seem to have been contended b}'- the plaintiff that he was entitled to judgment final by default under section 885 of The Code, as the action was not brought upon a “breach of an express or’implied contract to pay absolutely or upon a contingency a sum or sums of money fixed by the terms of the contract, or capable of being ascertained therefrom by computation.” Therefore it is not a matter of moment whether the complaint *775was verified or not. It is well established, however, that a material amendment, unverified, to a verified complaint renders it necessary to treat the complaint as unverified. And as this amendment was material, at least as far as defendant Walker was concerned, the complaint was filed as to him just before the issues were submitted to the jury. Rankin v. Allison, 64 N. C., 673; Bank v. Frankford, Philips, 199.
Section 386 of The Code provides: “In all other actions, except those mentioned in the preceding section, when the defendant shall fail to answer, and upon a like proof, judgment by default and inquiry may be'had at the return term, and inquiry shall be executed at the next succeeding .term.” The return term was that held in August, 1891. If the complaint had been filed according to the provisions of section 206 of The Code, on or before the third day of the term, and the defendant had failed to appear and demur or answer at the same term, the plaintiff might have had judgment by default (section 207). But where the complaint is filed after the return term it stands on the file during the first throe days of the next succeeding term, and judgment by default for want of an answer at that term may be rendered, and if judgment is not rendered at the term last named, and there is no answer filed at the next term thereafter, judgment may then be taken by default. Roberts v. Allman, 106 N. C., 391. The plaintiff’, therefore, was entitled to judgment by default at March Term, 1892, upon the complaint filed at the previous term. But the complaint was amended at March Term, 1892, when the case was reached upon the calendar; it does not appear whether this was within the first three days of the term or not; if it were the defendants were entitled to the balance of the term to file their answer, and if no demurrer or answer was filed the plaintiff would have been entitled *776to judgment by default. It is evident that this judgment could not have been rendered until just before the adjournment for the term.
We think the case was properly placed upon the civil issue docket, although no issues had been joined, for not only issues of fact joined upon the pleadings, but also all other matters for hearing before the Judge at a regular term of the Court, arc to be put upon, this docket. The Code, §83, paragraph 3; Walton v. McKesson, 101 N. C., 428. The complaint having been amended at March Term, 1892, the defendant was entitled to answer. For all practical purposes the term at which the complaint is filed, before the third day thereof, is the return term. Roberts v. Allman, supra. And while it is true that the refusal of the Judge to allow an answer to be filed at the trial term is a matter of discretion and not rcviewable (Reese v. Jones, 84 N. C., 597) this was not the trial term, because the amended complaint had just been filed. We, of course, are referring to such amendments as that which was made in this case, and not of amendments whore the opposing party has not been misled by a defect in the pleadings, in which case an amendment can be allowed during the trial or even after verdict. Garrett v. Trotter, 65 N. C., 430; The Code, §273.
Defendant Walker, then, ought to have been permitted to answer at March Term, 1892, and if answer was not filed before the adjournment, in case the amended complaint was filed before the close of third day of the term, the plaintiff would have been entitled to a judgment by default and inquiry under section 386. We nowhere find that the inquiry may be executed at the same term as that at which the judgment by default was rendered, unless it is expressly allowed to be done by statute.
*777An irregular judgment is one rendered contrary to the course and practice of the Court, and may be set aside at any reasonable time.
The submission of the case to the jury without judgment by default, and at the same term at which such judgment might have been rendered if the defendant had not been entitled to answer, was not according to the course and practice of the Court and was irregular, and it was error to have held that the trial, verdict and judgment were regular. They ought'to have been set aside as to the defendant Walker, and the said defendant allowed to answer. (Defendant Rliinehart did not appeal). Error in defendant Walker’s appeal.
(PLAINTIFF’S APPEAL IN SAME CASE).
MacRae, J.: Whatever may have been the former rulings upon the power of the Judge to set aside judgments under section 274 of The Gode, we must consider it settled by the decisions in Beck v. Bellamy, 93 N. C., 129, and Clemmons v. Field, 99 N. C., 400, followed at last Term in the case of Flowers v. Alford, 111 N. C., 248, that where the judgment was rendered upon a verdict the motion will be denied, and that therefore it was error in his Honor to have set aside the verdict and judgment for excusable neglect. But as the same result will be reached, and the verdict and judgment be set aside as irregular, the appellant will not recover his costs upon the appeal. It is so ordered.
Error.