In the present action defendant, Robert Earle, was duly served with summons. The complaint was properly verified and filed within the time required by the statute. The court had jurisdiction of the person and the complaint alleges actionable negligence against the defendant. It is a suit of the wife against the husband for negligent injury, but it is now well settled in this jurisdiction that such an action will lie. C. S., 454, 2513; Crowell v. Crowell, 180 N. C., 516, S. c., 181 N. C., 66; Roberts v. Roberts, 185 N. C., 566; Small v. Morrison, 185 N. C., 577; In re Will of Witherington, 186 N. C., 152; Roberts v. Guaranty Co., 188 N. C., 795; Hyatt v. McCoy, 194 N. C., 25; Etheredge v. Cochran, 196 N. C., 681.
Judgment by default and inquiry was rendered before the clerk on 9 August, 1929, and transferred to the civil issue docket to have the damage determined and fixed by a jury, and a like judgment was rendered on 14 October, 1929. No appeal was taken by defendant from these judgments. No doubt the two judgments were taken “in abundance of caution,” and to comply with N. 0. Code, 1927, 597(b). At least defendant did not appeal from either judgment by default and inquiry.
N. 0. Code, 1927, 597(a) is as follows: “If no answer is filed, the plaintiff shall be entitled to judgment by default final or default and inquiry as authorized by sections 595, 596 and 597, and all present or future amendments of the said sections; and all judgments by default final shall be duly recorded by the clerk and be docketed and indexed in the same manner as judgments of the Superior Court and be of the same force and effect as if rendered in term and before a judge of the Superior Court; and in all cases of judgment by default and inquiry rendered by the clerk, the clerk shall docket the case in the Superior Court at term time for trial upon the issues raised before a jury, or otherwise, as provided by law, and all judgments by default and inquiry shall be of the same force and effect as if rendered in term and before a judge of the Superior Court.”
A judgment by default and inquiry for the want of an answer establishes the cause of action and leaves the question of the amount of damages open to the inquiry, Junge v. MacKnight, 137 N. C., 285, 288, 49 *415S. E., 474; Farmer-Cole Plumbing Co. v. Wilson Hotel Co., 168 N. C., 577, 84 S. E., 1008; Armstrong v. Asbury, 170 N. C., 160, 86 S. E., 1038; Gillam v. Cherry, 192 N. C., at p. 198; but tbe burden of proving any'damages beyond sucb as are nominal rests upon tbe plaintiff. Hill v. Hotel Co., 188 N. C., 586, 125 S. E., 266.
Tbe Globe Indemnity Company bad issued a policy of insurance, or indemnity, to tbe defendant, Robert Earle, wbo tbe Indemnity Company charged bad violated bis contract witb tbe company, and bad not given proper notice of tbe accident or of tbis action, or defended tbe suit. Tbe Globe Indemnity Company, in its motion to set aside tbe judgments, “respectfully petitions and moves tbe court that it will, on account of mistake, inadvertence, surprise or excusable neglect, and in its discretion, relieve said Tbe Globe Indemnity Company and Robert Earle, defendant, from two judgments rendered in favor of tbe plaintiff and against tbe defendant, Robert Earle (as hereinbefore set out), and will set' aside and vacate said judgments, and will allow your petitioner to file an answer in tbis action for and in behalf- of tbe said Robert Earle, defendant, and it respectfully assigns as reasons,” etc.
C. S., 600, is as follows: “Tbe judge shall, upon sucb terms as may be just, at any time within one year after notice thereof, relieve a party from' a judgment, order, verdict or other proceeding taken against him through bis mistake, inadvertence, surprise or excusable neglect, and may supply an omission in any proceeding. Tbe clerk may bear and pass' upon motions to set aside judgments rendered by him, whether for irregularity or under tbis section, and an appeal from bis order on sucb motion- shall lie to tbe judge at tbe next term, wbo shall bear and pass upon sucb motion de novo: Provided, however, nothing in tbis section shall be construed to affect tbe rights of innocent purchasers for value in foreclosure proceedings where personal service is obtained.”
In Foster v. Allison Corporation, 191 N. C., at p. 173, tbe following is said: “It will be noted that tbe statute says Through bis mistake, inadvertence, surprise or excusable neglect.’ We think tbis language Through bis’ ex vi termini means personal knowledge, be can then apply for tbe relief as set forth in O. S., 600.”
“If tbe statute gives tbe right to open or vacate a judgment taken against a party through ‘his’ mistake, no mistake made by any other person will justify tbis action.” 34 C. J., part sec. 516, “Judgments,” at p. 298, citing cases from California, Indiana, Montana, New York, and Boyden v. Williams, 80 N. C., 95. See Commissioners of Chowan v. Bank, 197 N. C., 410.
In Small v. Morrison, 185 N. C., at p. 579, we find: “By express stipulation, tbe indemnitor is not to be held liable in an action at tbe instance *416of the injured party, unless and until ‘execution against the assured is returned unsatisfied’ in an action brought against him. This, in terms, is made a condition precedent to the right of the injured party to maintain an action against the indemnity company; and where the rights of the parties are fixed by contract, the law will uphold such rights.” The policy in the present action has the above provision and further “no action shall lie against the company to recover upon any claim or for any loss under Insuring Agreement I (a) and I (b) until the amount of such claim or loss shall have been fixed and rendered certain either by judgment against the assured after trial of the issue or by agreement between the parties with the written consent of the company nor unless brought within two years thereafter.”
The principle is thus stated in Harrison v. Transit Co., 192 N. C., at p. 548: “The prevailing doctrine is that if the indemnity is clearly one against loss suffered by the assured no action can be maintained against the indemnity company until some loss or damage has been shown; but if the contract indemnifies against liability a right of action against the principal and the surety company accrues when the injury occurs.” Williams v. Motor Lines, 195 N. C., 682.
In Luttrell v. Hardin, 193 N. C., at p. 269, speaking to the subject, citing numerous authorities, it is said: “It is well settled in this jurisdiction: ‘That the assured . . . must actually sustain a loss before an action will lie upon the indemnity policy, as this is expressly required by the terms.’ Killian v. Hanna, ante, p. 20. It has been repeatedly held that the fact that a defendant in an actionable negligence action carried indemnity insurance could not be shown on the trial. Such evidence is incompetent.” The contract made between The Globe Indemnity Co., and defendant Robert Earle, has no ambiguity about it, but is clear, and its provisions have been construed time and time again by the Courts. It must abide the written words.
In this jurisdiction, “coverture is not now a defense in bar of the running of the statute of limitations since 13 February, 1899.” In re Will of Witherington, supra, at p. 154.
From the view we take of this action, the question as to whether a meritorious defense is shown is not necessary to be considered. Nor do we decide as to whether appellant may assert such defense against the judgment rendered herein. For the reasons given, the judgment below is
Reversed.