Turner v. Southeastern Grain & Livestock Co., 190 N.C. 331 (1925)

Oct. 21, 1925 · Supreme Court of North Carolina

190 N.C. 331

CHESTER D. TURNER et al. v. SOUTHEASTERN GRAIN AND LIVESTOCK COMPANY et al.

(Filed 21 October, 1925.)

Judgments — Excusable Neglect — Motions—Appeal and Error.

Upon refusal of plaintiff’s motion to set aside a judgment for surprise, mistake or excusable neglect, tbe findings by tbe judge below upon these questions adverse to plaintiff are not reviewable on bis appeal.

Appeal by several of the plaintiffs from Barnhill, J., at February Term, 1925, of CeaveN.

Motion of plaintiffs, Chester D. Turner, Devereaux Turner, George Lord and wife, Margaret Lord, to set aside judgment, rendered in this cause at the September Term, 1924, Craven Superior Court, on the grounds (1) that the appealing plaintiffs were not duly represented by counsel authorized to appear for them at the time of the entry of said judgment; and (2) that the same was taken through mistake, inadvertence, surprise or excusable neglect as to them. C. S., 600. Motion denied, and plaintiffs, as above named, appeal.

A. W. Graham & Son, C. D. Turner for plaintiffs.

Ward & Ward, D. L. Ward, T. D. Warren for defendants.

Stacy, C. J.

The judge found the facts, as he is required to do, and embodied them in the judgment. Smith v. Holmes, 148 N. C., 210. Upon the findings made, supported, as they are, by competent evidence, the motion was properly overruled. Bartholomew v. Parrish, ante, 151.

Not only did the judge find, upon ample evidence, that the appealing plaintiffs were duly represented by reputable and solvent counsel at the time of tbe entry of tbe judgment in question and that tbe same was taken tbrougb no mistake, inadvertence, surprise or excusable neglect on their part or on tbe part of tbe appealing plaintiffs, but be went further and found that tbe plaintiffs bad no meritorious cause of action in tbe matters alleged and upon which suit was based. Crumpler v. Hines, 174 N. C., 284. These findings are fatal to tbe appeal of tbe plaintiffs. Bank v. Duke, 187 N. C., 386; Norton v. McLaurin, 125 N. C., 185. And they are binding on us. Gaster v. Thomas, 188 N. C., 346.

There is no error appearing on tbe record.

Affirmed.