Minton v. Hughes, 158 N.C. 587 (1912)

Feb. 28, 1912 · Supreme Court of North Carolina

158 N.C. 587

D. L. MINTON v. J. B. HUGHES.

(Filed 28 February, 1912.)

Motions — Judgment Set Aside — Meritorious Defense — Practice.

Upon a motion to set aside a judgment for excusable neglect, a meritorious defen'se must be shown. Revisal, sec. 5l3.

Appeal from Justice, J., at October Term, 1911, of Heet-fokd.

A motion to set aside a judgment upon the ground of excusable neglect under section 513 of the Revisal. His Honor declined to set aside the judgment, and the defendant appealed to the Supreme Court.

JohnE. Vann, Vfinborn & Winborn for plaintiff.

Winston & Matthews for defendant.

Pee Cueiam.

The Court is of opinion in this case that it is unnecessary to consider the question of excusable neglect for which his Honor declined to set aside the judgment in the court below. Not only must the defendant show excusable neglect as defined by many decisions of this Court, but he must also show that he has meritorious defense. Norton v. McLaurin, 125 N. C., 189; Turner v. Machine Co., 133 N. C., 384.

Upon consideration of this feature of the case, we are of the opinion that defendant’s petition and affidavits show no defense to the action which could avail him in law. Pharr v. Russell, 42 N. C., 222.

Affirmed.