Appellants contend that the judge below erred in not treating the motion of defendant as a motion to set aside the judgment by default for excusable neglect, pursuant to provisions of G.S. 1-220, and in not finding facts in accordance therewith. It may be conceded that if the judgment in question had been taken according to the course and practice of the court, the judge, under this statute, should find the facts of excusable neglect and meritorious defense. However, in the light of pertinent statutes in this State and pertinent decisions of this Court, the judgment here was entered without authority in that judgment by default may be entered only when defendant has not answered. G.S. 1-211 and G.S. 1-214. Hence the provisions of G.S. 1-220 are inapplicable.
The General Statutes of North Carolina, G.S. 1-125, provide that defendant must appear and answer or demur within thirty days after service of summons upon him; and that the clerk shall not extend the time for filing answer or demurrer more than once nor for a period of time exceeding twenty days, except by consent of the parties.
And it is provided in G.S. 1-211 that judgment by default final may be had on failure of defendant to answer, and in G.S. 1-214 that if no answer is filed the plaintiff shall be entitled to judgment by default final or default and inquiry as authorized by G.S. 1-211, etc.
*89This raises the question in the present case as to whether an answer had been filed in a legal sense at the time the clerk entered the judgment by default final. As to this, it is pertinent to note that G.S. 1-125 further provides that defendant, when he files answer, shall likewise file at least one copy thereof for the use of the plaintiff and his attorney; that the clerk shall not receive and file any answer until and unless such copy is filed therewith; and that the clerk shall forthwith mail the copy of answer filed to the plaintiff or his attorney of record. In the light of these provisions it may be fairly inferred from the fact, admitted by plaintiffs, that a copy of the answer was mailed to plaintiffs’ counsel, that defendant filed with the clerk a copy of her answer, and that the clerk mailed it, thereby taking cognizance of the filing.
Moreover, the parties say that defendant filed what purports to be an answer, — though two days late. What then is the meaning of the word “filed” ? It has a distinct significance. This Court, speaking of it in the case of Power Co. v. Power Co., 175 N.C. 668, 96 S.E. 99, stated: “It has been held that ‘a. paper writing is deemed to be filed within the meaning of the law when it is delivered for that purpose to the proper officer and received by him, and it is not necessary to the filing of a paper that it shall be endorsed as having been so filed. The file mark of the officer is evidence of filing, but it is not the essential element of the act,’ unless the statute makes it so.” Authorities are cited, including in principle the cases of Glanton v. Jacobs, 117 N.C. 427, 23 S.E. 335, and Smith v. Lumber Co., 144 N.C. 47, 56 S.E. 555.
Thus on the face of the record on 21 January, 1949, when the clerk acted upon the motion of plaintiffs for judgment by default final, it appeared that defendant had filed an answer on 19 January, 1949. If it were not filed within the meaning of the law plaintiffs, upon motion so to do, might have had the answer stricken from the record, and, if such motion were allowed, to move then for judgment by default final. This was not done.
And while the clerk is authorized by statute, G.S. 1-209, to enter all judgments by default final as are authorized in G.S. 1-211, and others, the situation of the record, at the time he came to act on plaintiffs’ motion for such judgment, failed to present a case where the defendant had not answered. Hence, so long as the answer remained filed of record, the clerk was without authority to enter a judgment by default final. This being so, the judgment entered may, on motion in the cause, be set aside.
And it is noted that we have here more than there was in the case of Elramy v. Abeyounis, 189 N.C. 278, 126 S.E. 743, where it is said, “the defendant’s attorney deposited in the clerk’s office a paper writing.” Hence that case is not controlling here.
*90Furthermore, this Court has held that where the plaintiff is entitled to judgment by default before the clerk for failure of defendant to answer within the statutory time, he waives this right by waiting until after the clerk has permitted an answer to be filed and the matter has been transferred to the civil issue docket for trial. Cahoon v. Everton, 187 N.C. 369, 121 S.E. 612.
Moreover, it is provided by statute, G.S. 1-171, that the pleadings shall be made up and issues joined before the clerk and that after the pleadings have been so made up and issues joined, the clerk shall forthwith transmit the original papers in the cause to the court at term for trial upon the issues, when the case shall be proceeded with according to the course and practice of the court. The transmission is, in effect, by operation of law. Hence, when the answer was filed the transmission took place, — and the case was in Superior Court.
This Court also held in the Cahoon case, supra, that where the plaintiff has waived his right to judgment by default before the clerk, and the cause has been transferred to the civil issue docket for trial, the trial judge has the authority, under the provisions of G.S. 1-152, formerly C.S. 536, to allow defendant to amend his answer. In truth, the statute declares that “The judge may likewise, in his discretion, and upon such terms as may be just, allow an answer or reply to be made, or other act to be done, after the time limited, or by an order may enlarge the time.” But whether this cause was in Superior Court by operation of law or by appeal of defendant from order of the clerk, the judge has jurisdiction. It is provided in G.S. 1-276 that “whenever a civil action or special proceeding begun before the clerk of a Superior Court is for any ground whatever sent to the Superior Court before the judge, the judge has jurisdiction; and it is his duty, upon the request of either party, to proceed to hear and determine all matters in controversy in such action, unless it appears to him that justice would be more cheaply and speedily administered by sending the action back to be proceeded in before the clerk, in which case he may do so.” This provision is applied most recently in McDaniel v. Leggett, 224 N.C. 806, 32 S.E. 2d 602; Moody v. Howell, 229 N.C. 198, 49 S.E. 2d 233, and Plemmons v. Cutshall, 230 N.C. 595, 55 S.E. 2d 74.
For reasons stated, the judgment below is
Affirmed.