In ber affidavit filed with tbe clerk of tbe Forsytb County Court in support of ber motion tbat tbe judgment rendered in tbis action in favor of tbe plaintiff and against ber, be set aside and vacated, tbe defendant, Bernice E. Turner, denies tbat she executed tbe note sued on in tbis action as alleged in tbe complaint; she alleges tbat she did not sign tbe note as maker or otherwise, and tbat if ber name appears thereon, it is a forgery, or at least tbat it was signed to tbe note without ber authority. There was evidence at tbe bearing of tbe motion by tbe clerk in support of defendant’s affidavit. Tbe clerk found from all tbe evidence tbat defendant has a meritorious defense to tbe action. Tbis finding was approved by tbe judge of tbe Forsytb County Court, on defendant’s appeal from tbe order of tbe clerk of said court denying ber motion. It was also approved by tbe judge of tbe Superior Court of Forsytb County on defendant’s appeal from tbe judgment of tbe judge of tbe Forsytb County Court, affirming tbe order of tbe clerk of said court. It is therefore established tbat defendant has a meritorious defense to tbe action, and tbat if tbis defense is sustained at a trial of tbe action on its merits, tbe defendant is not liable to tbe plaintiff on tbe note sued on in tbis action.
It appears from tbe affidavit of tbe defendant tbat at tbe date of tbe service of tbe summons and complaint in tbis action on tbe defendant and ber husband, E. D. Turner, tbe said defendants were living together as husband and wife in tbe city of Winston-Salem; tbat ber husband assured tbe defendant tbat be bad employed counsel to defend tbe action, and tbat be would look after ber defense and file an answer to tbe complaint in' ber behalf; tbat tbe defendant relied upon tbe assur-*164anee of her husband that he would cause an answer to be filed in defendant’s behalf, setting up her defense to the action; and for this reason defendant did not attend the court in person or by attorney; and that she did not discover until after she was notified by the attorney for the plaintiff that judgment had been rendered in the action against her, that no answer had been filed therein on her behalf. Immediately upon receiving such notice defendant employed counsel, and caused notice to be served on plaintiff that she would move that the judgment be set aside and vacated in accordance with the provisions of C. S., 600.
The clerk of the Forsyth County Court found that the neglect of the defendant to file an answer to the complaint within the time prescribed by statute was not excusable, and for this reason, notwithstanding his finding that defendant has a meritorious defense .to the action, denied her motion. The judge of the Forsyth County Court was of opinion that there was no error in the order of the clerk of said court, denying defendant’s motion, and for that reason affirmed said order. The judge of the Superior Court of Forsyth County sustained defendant’s assignments of error based upon her exceptions appearing in the record, reversed the judgment of the judge of the Forsyth County Court, and remanded the action to said court, with direction that the judgment by default final against the defendant be set aside and vacated, and that defendant be allowed to file an answer in said court to the complaint, setting up her defense to the action.
The question of law presented by this appeal may be stated as follows: Is the neglect of a wife, who is living with her husband, and who is sued on a joint cause of action with her husband, to file an answer to the complaint, within the time prescribed by statute, because of the assurance of her husband that he will employ counsel and cause an answer to be filed setting up a meritorious defense to the action in her behalf, excusable within the provisions of O. S., 600? We are of the opinion that under these circumstances her neglect is excusable. It was so held in Nicholson v. Cox, 83 N. C., 49, and in SiJces p. Weatherly, 110 N. C., 131, 14 S. E., 511. The decision in neither of these cases has been overruled or' modified by this Court.
C. S., 2507, known as the Martin Act, does not affect or purport to affect the relation of husband and wife, or their mutual rights and duties growing out of the marital relation. As said by Merrimon, C. J., in Sikes v. Weatherly, supra, the wife may rely upon her husband’s promise to employ counsel for her, at her request, when a summons in a. civil action has been served on her. Her neglect to file an answer to the • complaint, because of her reliance on her husband’s promise to do so, is excusable. The judgment is
Affirmed.