Chapman v. Lineberry, 194 N.C. 811 (1927)

Dec. 7, 1927 · Supreme Court of North Carolina

194 N.C. 811

JAY CHAPMAN v. C. F. LINEBERRY et al.

(Filed 7 December, 1927.)

Appeal by defendant, C. F. Lineberry, from order of McElroy, J., at September Term, 1927, of AlexaNDEe.

Affirmed.

Motion by defendant, C. F. Lineberry, to set aside judgment rendered and verdict returned in this action at March Term, 1927, of Superior Court of Alexander County, for that same were irregular and were due to the excusable neglect of defendant to appear and defend the action. Defendant alleges that he has a meritorious defense.

From order refusing to allow the motion defendant appealed to the Supreme Court.

F. J. McDuffie and J. H. Burlce for plaintiff.

W. M. Allen and W. G. Newland for defendant.

Pee Oubiam.

Upon the facts found by the judge, upon the hearing of the motion, we find no error in his order refusing defendant’s motion. Both complaint and answer had been duly filed prior to March Term, 1927, and the action was docketed for trial at said term. This term was held in accordance with the provisions of the statutes relative to terms of the Superior Courts to be held in the several counties of the State. Defendant’s failure to attend and defend the action at the March Term cannot, upon the facts found, be held excusable.

Issues were submitted to a jury, and plaintiff offered evidence from which the jury returned the verdict under instruction of the court. This verdict supports the judgment. If there was error defendant’s remedy was by appeal and not by motion to set aside the judgment and verdict. We find no error, and the order is

Affirmed.