This is a motion to set aside a judgment by default final taken at a previous term. The summons was duly served and a verified complaint filed. The defendant was represented by counsel but filed no answer. The plaintiff’s counsel stated he would agree to the allowance of time to file answer if defendant’s counsel would say that he had a meritorious defence. This he declined to do, saying that he had a letter from - his client stating he could not attend, but not informing him why he could not, not stating any ground of defence. Judgment final was thereupon entered. The conduct of defendant vras inexcusable in not giving his counsel information on these points. Even now he shows no sufficient excuse for his failure to do this, and his Honor properly refused to set the judgment aside for excusable neglect. Besides, his refusal is a matter of discretion and not review-able unless it appeared that his discretion had been abused. Wyche v. Ross, 119 N. C., 174; Stith v. Jones, Ibid 428; Brown v. Hale. 93 N. C., 188.
The defendant then insisted that the judgment should be *276set aside for irregularity. The part of the judgment alleged to be irregular is that rendered for the cause of action set out in the fifth section of the complaint which avers “that in addition to the sums of money due as aforesaid, and secured by mortgage, the said Calvin J. Cowles is indebted to the plaintiff in the sum of $158.30 to be added to the said sums secured by mortgage, by reason of the following facts,” and here the facts are set out, which are in substance that the land had been sold for taxes against the mortgagor, and the plaintiff mortgagee, to protect the mortgaged property, by compromise paid the sum of $138.30 to the purchaser of the tax title, as otherwise (as he averred) his security would have been valueless and defeated. This was an allegation of a sum certain, paid for the benefit of the defendant, and the plaintiff evidently rested his claim of indebtedness upon the implied promise to repay. It is not the case of an officious payment, but a payment by a mortgagee to protect the title of the mortgagor. 15 Am. & Eng. Enc., 826, 827 and note. But whether the law raised .an implied promise of repayment upon that state of facts it is indeed not necessary now to decide, for if it did not raise such implied promise his Honor, in rendering judgment that it did, committed an error of law which could only have been corrected by an appeal to this Court. It could not be corrected by the next Judge holding that Court, for he has no power to pass upon errors in law committed in the judgments rendered by his predecessor. May v. Lumber Co., 119 N. C., 96.
If the sum demanded had been for unliquidated damages, -or if, on contract, for an open account or other uncertain amount, the judgment should have been by default and inquiry. Battle v. Baird, 118 N. C., 854. But when, as here, the allegation is of a sum certain expended for the benefit of defendant and therefore upon an implied promise to repay, and the complaint is verified and no answer filed, *277the judgment is properly by default final. Code, Section 885(1). There was nothing for the jury to pass upon. Upon a judgment by default and inquiry the legal liability is fixed by the default, and the inquiry is only to ascertain the amount. Iiere, if the facts appearing in the sworn complaint, and not denied in any answer, were not sufficient in law to imply a promise to repay, there was an error of law in the Court so holding, i. e., it was an erroneous judgment, but there was no irregularity. The allegation in the complaint was of a sum as definite and fixed as if it liad been evidenced by a bond or note. If upon the law the plaintiff was entitled to recover at all, upon the facts stated in the verified complaint there could be no question as to the amount, and no inquiry was required to ascertain it.
Affirmed.