Woody v. Privett, 199 N.C. 378 (1930)

Sept. 10, 1930 · Supreme Court of North Carolina

199 N.C. 378

CARLENE WOODY v. A. A. PRIVETT.

(Filed 10 September, 1930.)

Judgments K b — Finding of meritorious defense is necessary to order setting aside judgment for excusable neglect, etc.

In order to have a judgment by default set aside on tbe ground of excusable neglect and irregularity tbe movant must show a meritorious defense, and where sucb defense is not made to appear an order granting a motion therefor will be vacated on appeal and the cause remanded.

Appeal by plaintiff from Grady, J., at May Term, 1930, of WilsoN.

Motion to set aside judgment by default and inquiry for excusable neglect and irregularity. Motion allowed, and plaintiff appeals.

W. A. Lucas for plaintiff.

O. P. Diclcinson and Finch, Band & Finch for defendant.

Stacy, O. J.

There is no finding of a meritorious defense, hence the order vacating the judgment will be set aside and the cause remanded for further proceedings not inconsistent with the rights of the parties. Jones v. Swepson, 94 N. C., 699; Gaylord, v. Berry, 169 N. C., 733, 86 S. E., 623.

A party who seeks to be relieved from a judgment on the ground of excusable neglect or irregularity must show merit, otherwise the court would be 'engaged in the vain procedure of setting aside a judgment, when, if there be no defense, it would be its duty to enter the same judgment again on motion' of the adverse party. Taylor v. Gentry, 192 N. C., 503, 135 S. E., 327; Duffer v. Brunson, 188 N. C., 789, 125 S. E., 619; Crumpler v. Hines, 174 N. C., 283, 93 S. E., 780.

Error and remanded.