Cayton v. Clark, 212 N.C. 374 (1937)

Nov. 3, 1937 · Supreme Court of North Carolina

212 N.C. 374

R. E. CAYTON v. G. A. CLARK and MASON HOWARD.

(Filed 3 November, 1937.)

Judgments § 33—

A denial of a motion to set aside a judgment under C. S., 600, will not be disturbed on appeal when there is neither allegation nor finding of a meritorious defense, and the Supreme Court will not consider affidavits for the purpose of finding facts in motions of this sort.

Appeal by defendant, Mason Howard, from Cranmer, J., at May Term. 1937, of Pitt.

Motion made under O. S., 600, to vacate judgment on ground of excusable neglect.

Tbe case was tried at tbe April Term, 1937, of Pitt Superior Court, in tbe absence of tbe defendant and bis tben counsel (be is now represented by other counsel), albeit tbe case was regularly set as tbe first on tbe calendar for Monday, 19 April, and continued until late in tbe afternoon of tbat day to await tbe arrival of defendant’s counsel wbo lived in Kinston, a distance of thirty miles from Greenville, but wbo failed to appear.

Tbe judge found tbe facts relative to defendant’s alleged excusable neglect and denied tbe motion. Defendant appeals.

Roberts & Williford for plaintiff, appellee.

John G. Dawson for defendant, appellant.

Stacy, C. J.

Even if it be conceded tbat upon tbe facts found by tbe judge tbe question of excusable neglect may fairly be debatable under tbe decision in Sutherland v. McLean, 199 N. C., 345, 154 S. E., 662 (delimited in Carter v. Anderson, 208 N. C., 529, 181 S. E., 750; Kerr v. Bank, 205 N. C., 410, 171 S. E., 367, and Dail v. Hawkins, 211 N. C., 283, 189 S. E., 774), still tbe judgment would seem to be correct as there is neither allegation nor finding of any meritorious defense. This is fatal to appellant’s case. Bowie v. Tucker, 197 N. C., 671, 150 S. E., 200; Bank v. Duke, 187 N. C., 386, 122 S. E., 1; Land Co. v. Wooten, 177 N. C., 248, 98 S. E., 706; School v. Peirce, 163 N. C., 424, 79 S. E., 687; McLeod v. Gooch, 162 N. C., 122, 78 S. E., 4; Hardware Co. v. Buhmann, 159 N. C., 511, 75 S. E., 731; Norton v. McLaurin, 125 N. C., 185, 34 S. E., 269; Taylor v. Gentry, 192 N. C., 503, 135 S. E., 327; Albertson v. Terry, 108 N. C., 75, 12 S. E., 892. “We do not consider affidavits for tbe purpose of finding facts ourselves in motions of this sort.” Gardiner v. May, 172 N. C., 192, 89 S. E., 955; Holcomb v. Holcomb, 192 N. C., 504, 135 S. E., 287.

It would be idle to vacate a judgment where there is no real or substantial defense on tbe merits. Lumber Co. v. Cottingham, 173 N. C., 323, 92 S. E., 9; Land Co. v. Wooten, supra. “Unless tbe court can now see reasonably tbat defendants -bad a good defense, or tbat they could make a defense tbat would affect tbe judgment, why should it engage in tbe vain work of setting tbe judgment aside ?” — Brown, J., in Glisson v. Glisson, 153 N. C., 185, 69 S. E., 55. “One-wbo asks to be relieved from a judgment on tbe ground of excusable neglect must show merit, as otherwise tbe court would be asked to do tbe vain thing of setting aside a judgment when it would be its duty to enter again tbe same judgment on motion of tbe adverse party” — Allen, J., in Crumpler v. Hines, 174 N. C., 283, 93 S. E., 780.

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. Woody v. Privett, 199 N. C., 378, 154 S. E., 625; Taylor v. Gentry, supra; Duffer v. Brunson, 188 N. C., 789, 125 S. E., 619.

Affirmed.