J. B. Colt Co. v. Martin, 201 N.C. 354 (1931)

Sept. 23, 1931 · Supreme Court of North Carolina

201 N.C. 354

J. B. COLT COMPANY v. J. F. MARTIN and his wife, COTTIE MARTIN.

(Filed 23 September, 1931.)

Judgments K b — Upon motion, to set aside judgment under C. S., 600, judgment upon facts found that neglect was excusable was not error.

In this case held: upon tbe facts found by tbe Superior Court judge on appeal from tbe clerk upon a motion to set aside a judgment for surprise and excusable neglect under C. S., 600, judgment that tbe neglect of tbe defendant was excusable is not error.

Stacy, C. X, dissenting.

Appeal by plaintiff from Moore, Special Judge, at June Term, 1931, of MaktiN.

Affirmed.

Tbis is an action to recover on notes executed by defendants, and payable to plaintiff. Tbe action was begun on 2 - January, 1931. Tbe summons and verified complaint were duly served on defendants on 5 January, 1931.

Neither of tbe defendants appeared and demurred to or answered tbe complaint within thirty days after tbe service of tbe summons. On 2 March, 1931, on motion of plaintiff, judgment by default final was rendered by tbe clerk of tbe Superior Court of Martin County. On 10 March, 1931, defendants having learned that judgment bad been rendered against them in tbis action, caused notice to be served on tbe attorney of record for plaintiff of their motion that tbe judgment be set aside and vacated under C. S., 600. Tbis motion was beard, and on 11 May, 1931, tbe clerk, having found that tbe neglect of defendants to file an answer to tbe complaint was excusable and that defendants have a meritorious defense to tbe cause of action alleged in tbe complaint, rendered judgment, setting aside and vacating tbe judgment by default final. From tbis judgment, plaintiff appealed to tbe judge of tbe Superior Court of Martin County.

At tbe bearing of tbe appeal, tbe judge beard and considered tbe evidence, and approved tbe findings of fact set out in tbe judgment of tbe clerk. On these facts, judgment was rendered, affirming tbe judgment of the clerb, and setting aside and vacating the judgment by default final. From this judgment, plaintiff appealed to the Supreme Court.

J. W. Bailey for plaintiff.

A. B. Dunning for defendants.

Pee Cueiam.

The only assignment of error in plaintiff’s appeal to this Court is founded on its exception to the judgment rendered by Judge Moore. There is no error in this judgment. It is supported by the findings of fact set out therein.

The neglect of the defendants to appear and file an answer to the complaint within thirty days after service of the summons, as required by statute, C. S., 509, is admitted; the only question involved in defendants’ motion is whether such neglect was excusable within the meaning" of C. S., 600.

As said by Smith, C. J., in Mebane v. Mebane, 80 N. C., 34, it is difficult to deduce from the decisions of this Court any distinct practical principle, or to run a well-defined line separating those neglects that are, from those that are not excusable, in the sense of the statute, and hence the facts relied on must be ranged on one or the other side of the line in each case. In this case, there was no error in the conclusions of the judge, from the facts found by him, that the neglect of defendants is excusable. The judgment is therefore

Affirmed.

Stacy, O. J., dissenting.