Standard Fertilizer Co. v. Whorton, 213 N.C. 211 (1938)

March 2, 1938 · Supreme Court of North Carolina

213 N.C. 211

STANDARD FERTILIZER COMPANY v. W. H. WHORTON, GERALD V. WHORTON, and BETTIE E. WHORTON.

(Filed 2 March, 1938.)

Judgments § 23—

Defendants duly served with summons are not entitled to set aside a judgment by default final for surprise or excusable neglect because they bad no notice that tbe case was calendared for trial and no notice of the trial.

Appeal by defendants from Johnston, J., at June Term, 1937, of MartiN. Affirmed.

Motion to set aside verdict and judgment heretofore rendered in tbe cause, on tbe ground of inadvertence and excusable neglect. From an adverse ruling defendants appealed.

Coburn & Coburn for plaintiff, appellee.

Z. V. Bawls for defendants, appellants.

Per Curiam:.

The court below found the material facts as follows: Summons was issued 16 February, 1935, and duly served on defendants. The complaint set out a cause of action for debt evidenced by a note secured by a mortgage on certain personal property, and plaintiff asked for the possession of the property for the purpose of enforcing its lien. No answer was filed, and at September Term, 1935, of the Superior Court of Martin County there was verdict and judgment for plaintiff for the balance of its debt ($385.03), and the plaintiff was adjudged entitled to the possession of the described property. Defendants are residents of Pamlico County and had no actual notice that the case was calendared for trial or of the trial, and the personal property was at the time of issuance of summons in Pamlico County.

On 15 March, 1935, defendants instituted an action in Pamlico County against plaintiff involving the same subject matter, and secured restraining order restraining the plaintiff herein from foreclosing its lien on the described personal property. When the case in Pamlico County came on for trial there at April Term, 1937, upon admissions by counsel for plaintiff and defendants, that the matters involved there were the same as those in the Martin County case, the presiding judge there (Erizzelle) dismissed the action, but by consent the restraining order was continued, pending the decision of this motion in Martin County.

Upon these facts the court found that defendants were not taken by surprise and have not shown excusable neglect, and their motion to set aside judgment was denied.

The facts found by the judge of the Superior Court are sufficient to sustain the judgment and his ruling must be

Affirmed.