It is apparent that the judgment by default final was improvidently entered. It was irregular. Under tbe allegations of the complaint, plaintiff was entitled only to a judgment by default and inquiry. C. S., 595, 596; Byerly v. Acceptance Corp., 196 N. C., 256, 145 S. E., 236; Supply Co. v. Plumbing Co., 195 N. C., 629, 143 S. E., 248; Jeffries v. Aaron, 120 N. C., 167, 26 S. E., 696. Nor could the liability of the sureties on the indemnity obligation exceed that of the principal. S. v. Guarantee Co., 207 N. C., 725, 178 S. E., 550.
However, upon the motion to set aside the judgment on the ground of irregularity, it was incumbent upon the defendants to show a meritorious defense. Cayton v. Clark, 212 N. C., 374, 193 S. E., 404; Supply Co. v. Plumbing Co., 195 N. C., 629, supra. But this, we think, was shown by the answer of defendant Johnson. True, this was ordered stricken out by the clerk, but it was preserved in the record by defendant’s exception and was considered by the court below. By this verified answer, defendants offered to show as a defense that the plaintiff breached its contract with defendant Johnson, and refused to receive back large amounts of merchandise and give defendants credit therefor, which under the contract it was obligated to do, and that defendants were not indebted. All the defenses of defendant Johnson, the principal, were available to the other defendants sureties. Bank v. Loven, 172 N. C., 666, 90 S. E., 948. It may be noted that the ruling of the court below in declining to set aside the judgment by default final was based upon the holding that there was a failure to show a meritorious defense. Tickle v. Hobgood, 212 N. C., 762, 194 S. E., 461.
We think the court erred in denying the motion to set aside the judgment by default final under the circumstances disclosed by the record. It would seem also that defendant Johnson, against whom suit had been instituted for fraud, and upon whom no service of summons had been had, should be permitted to enter voluntary appearance and file answer in denial of the matters alleged against him. Dodd v. Reese, 128 A. L. R., 574. This appears to have been the view of plaintiff’s counsel when he wrote defendants’ counsel, “The plaintiff does not contest the right of Mr. Johnson to file his answer in the matter.”
We conclude that the judge below erred in his ruling on the motion, and that the judgment must be reversed. This disposition of the appeal renders unnecessary the consideration of defendants’ motion in this Court based upon newly discovered evidence.
Judgment reversed.