¶1(dissenting as to point 2 of the syllabus) :
¶2It seems anomalous that there may be right to demur after final judgment in any case, particularly when, as in this case, the party granted that right is grossly in default. So to hold is wholly out of accord with ordinary principle, to say nothing of the plain terms and the well recognized spirit and purpose of-secs. 46 and 47, ch. 125, Code 1906.
¶3The statute provides that an office judgment which is not set aside in the manner therein provided shall become a final judgment at the end of the first term after which the office judgment is taken. Surely this does not mean that the judgment is merely final as to matters of fact and still not of final character as to matters of law. It plainly means that the suit is ended, except as to the mere ministerial act of entering the judgment in the order book. It means final judgment as the words are ordinarily understood — the end of the case. “A final judgment is such a judgment as at once puts an end to the action by declaring that the plaintiff has or has not entitled himself to recover the remedy for which he sues.” Black on Judgments, sec. 21. The statute was meant to give a defendant ample time for defense and then to foreclose him from any defense, if he did not present it in that time. Always, everywhere, it has been conceded that this statute was made to hasten the end of litigation. Yet the decision herein permits one to come after final judgment, as under general law he can do in no other case, and take further steps even without showing good cause for his delay. Quite out of harmony is this with the very provisions of the statute itself, which provides that even at the term at which the defendant may set aside the office judgment, if he is so far in default that the judgment has been entered or a writ of inquiry executed, he must show good cause before he can have the judgment set *118aside. Post v. Carr, 42 W. Va. 72; Wilson v. Kennedy, 63 W. Va. 1.
¶4That the judgment has not been entered in the order book does not give a defendant right to appear at a subsequent term and re-open the litigation by entering a demurrer to the declaration. The statute expressly makes the judgment final at the end of the first term, though not entered in the order book. The case, by the force of the statute, is then judicially closed. The court has no further judicial power in regard to it. It'has no jurisdiction to entertain a demurrer. Is not this what was held in Marstiller v. Ward, 52 W. Va. 74? That case plainly holds that nothing but ministerial duty remains in the court. If no judicial power remains in the court after the end of the term at which an office judgment becomes a final judgment, how can the court entertain and pass on a demurrer to the declaration? Speaking of the provisions of the statute, Judge BRAnnon, in the case last above cited, says: “These provisions mean something. They mean that the defendant has had ample time to appear, two rules and one term, and by his default, he has confessed the demand, and it only remains for the court to record judgment, if certain other things which are required of the plaintiff by other provisions of section 46 are done by him, that is, if a certain affidavit is filed or proof of the demand furnished. ' But those things are required of the plaintiff; the statute does not enable the defendant, after that day, to make any defenseFurther on in the opinion he says that after the first term all defense is denied, that the court has no further jurisdiction, and that any further step in the cause is coram non judice. In Bank v. Burdette, 61 W. Va. 636, relied on in the majority opinion herein, Judge Beannon wrote nothing to the contrary. Nowhere therein does he even intimate that a demurrer may be entered at a term subsequent to the one at which the office judgment becomes a final judgment. He was dealing with a case in which a demurrer was entered before the office judgment became a final judgment. He does say that “if the demurrer is held good, and the case dismissed, the office judgment amounts to nought,” but plainly he is not there speaking of the final judgment which the law gives at the close of the term. He is speaking of the office *119judgment, the judgment entered at rules. He does not mean the final judgment, for that is not an office judgment, but a judgment of the term — by lapse of the term. So he is speaking of proceedings within the term, not of something done at a subsequent term. He tersely says: “In short, whether there is, or is not,' a demurrer, no other defence can be made after the first term. ’ ’ The point he was called upon to decide was whether the entry of the demurrer before the office judgment became a final judgment had the effect of setting aside the office judgment. He held that it did not — that it was not the character of plea that would set aside the office judgment. And though it was there held that a demurrer entered at the first term would not even operate to prevent the office judgment from becoming a final judgment, yet my associates now give a demurrer entered at a later term the effect absolutely to annul a judgment that has become final under the statute.
¶5Certainly if a demurrer is in time it may avail as a defense. But the defendant must put it in seasonably, or it may not avail him. If entered and rightly sustained before the office judgment becomes a final judgment it will annul the office judgment. Yet simply its entry after' office judgment will not prevent finality if it is not sustained before the end of the first term. The defendant, if tardy- in demurring, must recognize this and not rely alone on his demurrer if there is danger of the first term going by without the court’s judgment on his demurrer. He must plead his matter of fact also, file his counter affidavit, and thereby set aside the office judgment so that when his demurrer is acted on the law will not have pronounced final judgment against him. For, the finality of the judgment pronounced by the statute at the close of the first term, cuts off a pending defense by demurrer entered after office judgment. There is no hardship in this. Only the default of the defendant makes the demurrer to be pending at so late a time. A demurrer filed in term, after office judgment at rules, is one filed after default. The entry of the office judgment at rules is a pronouncement of default. To one in default the law does not accord extraordinary grace. It will let him in to be heard, provided his tardiness does not delay. Reynolds v. Bank, 6 Grat. 183. Were not this rule recognized and enforced, litigation would be extended and *120become vexatious. Dilatoriness would be honored. Even an answer filed' at the first term after default at rules will not delay, unless good cause for the tardiness is shown. McLaughlin v. Sayres, 78 S. E. 355. A. defendant who has been so neglectful in answering the summons of the court as to allow a confession by office judgment at rules to be entered against him, is not to be rewarded by allowing a demurrer thereafter entered by him to retard the advance of the proceedings under the strict provision of the statute of which he has all the time had notice. When he is summoned to rules, if he finds a demurrer a proper defense, he should there enter it. His appearance and the entry of a demurrer at rules prevents default- — prevents an office judgment — and thus saves him wholly from the risk of a final judgment at the end of the first term. Bank v. Bair, 77 S. E. 274. If he comes later, it is his own fault. He may readily prevent an office judgment by entering his demurrer at rules. If he does not do so, but allows office judgment against him and waits until the term to demur, he must take such chances on his late demurrer being heard as the short time before the day of final judgment avails him.
¶6On what principle can a distinction be made between defense of law and defense of fact so that the latter may be foreclosed by final judgment and the former admitted after final judgment? A final judgment forecloses everything in the case. All matters of law or fact, raised or that might have been raised, are settled and merged into it. It is too late for demurrer or plea. After final judgment nothing is open to the unsuccessful party but proceedings under the statute for correction of errors, writ of error, or appeal. He can not reopen the judgment simply by a demurrer as to which he was in default long before the judgment became final. The sub-stantiality of a final judgment can never be tested by a demurrer to the declaration. If the declaration is so defective as not to sustain the judgment, the defendant must show that on error or appeal. The proposition that after final judgment right to demur, to plead, or to take further steps, is cut off, is so uniformly recognized, so consistent with reason and principle, that no citation of authority is necessary to support it.
¶7*121If a demurrer may be- put in after final judgment why may not a plea in abatement be then filed as well? We have held that a plea in abatement is not such issuable plea as will set aside an office judgment, since it does not go to the fact of the debt sought to be recovered. If everything is not ended by the final judgment, if it only forecloses the question of fact and its standing is conditioned on matters outside of fact, why may not a plea in abatement be available even after the finality of the judgment- — at a subsequent term ?
¶8Further, suppose a demurrer, entered after final judgment, is sustained and the plaintiff permitted to amend his declaration. Shall not the defendant then be permitted to plead to the amended declaration? Why not? He has had no prior opportunity to do so. No such pleading has been in the case before. New matters are alleged by way of amendment. The defendant is not in default as to them. He could not answer them earli'er. Shall he not be given an opportunity to plead to that for the first time presented? Shall the judgment be supported by an amendment of the declaration and the defendant denied a hearing as to the truth of the amendment ? If so, though he is successful in his demurrer it avails him nought. Then why allow it at all ? But if he is granted the right to plead and an issue is made on the amended declaration, there must be trial. What then has become of the final judgment that the statute gave? What has- become of the speedy operation of the statute?
¶9The court, as one of original jurisdiction, is wholly without power over a judgment that has become final under the force of the statute. So held Judge Moneure, as to a similar statute, in Enders’ Ex’rs v. Burch, 15 Grat. 64. After the final judgment it can take cognizance of no further steps in the case tending to defeat the judgment, except proceedings for the correction of error under Code 1906, Ch. 134. “All proceedings in an action at law after an office judgment in favor of the-plaintiff has become final are a nullity, or should be set aside so as to give the plaintiff the benefit of the final judgment in his favor.” Gring v. Lake Drummond Canal and Water Co., 110 Va. 754.
¶10It is elementary that defenses of law or fact must come before final judgment.