The decisions of this Court uniformly hold that a party, moving in apt time under the provisions of G.S. 1-220, to set aside a judgment taken against him, on the ground of excusable neglect, not only must show excusable neglect, but also must make it appear that he has a meritorious defense to the plaintiff’s cause of action. Dunn v. Jones, 195 N.C. 354, 142 S.E. 320; Hooks v. Neighbors, 211 N.C. 382, 190 S.E. 224; Johnson, v. Sidbury, 225 N.C. 208, 34 S.E. 2d 67; Craver v. Spaugh, 226 N.C. 450, 38 S.E. 2d 525; Whitaker v. Raines, 226 N.C. 526, 39 S.E. 2d 266, and numerous other cases.
The findings of fact made by the court in respect to the elements so required, excusable neglect and meritorious defense, when supported by evidence, are conclusive on appeal, and binding on this Court. Craver v. Spaugh, supra.
But facts found under misapprehension of the law are not binding on this Court and will be set aside, and the cause remanded to the end that the evidence should be considered in its true legal light. McGill v. Lumberton, 215 N.C. 752, 3 S.E. 2d 586. See also S. v. Fuller, 114 N.C. 886, 19 S.E. 797; S. v. Casey, 201 N.C. 620, 161 S.E. 81; Tickle v. Hobgood, 212 N.C. 763, 194 S.E. 474; Bullock v. Williams, 213 N.C. 320, 195 S.E. 291; Farris v. Trust Co., 215 N.C. 466, 2 S.E. 2d 363; S. v. Calcutt, 219 N.C. 545, 15 S.E. 2d 9; Stanley v. Hyman-Michaels Co., 222 N.C. 257, 22 S.E. 2d 570; S. v. Williams, 224 N.C. 183, 29 S.E. 2d 744; Coley v. Dalrymple, 225 N.C. 67, 33 S.E. 2d 477; Troitino v. Goodman, 225 N.C. 406, 35 S.E. 2d 277; S. v. Gause, 227 N.C. 26, 40 S.E. 2d 463; Whitted v. Palmer Bee Co., 228 N.C. 447, 46 S.E. 2d 109.
Indeed, in Galaway v. Harris, 229 N.C. 117, 47 S.E. 2d 796, the principle has been aptly restated in this manner: “Where rulings are made under a misapprehension of the law or the facts, the practice is to vacate such rulings and remand the cause for further proceedings as to justice appertains and the rights of the parties may require,” citing McGill v. Lumberton, supra.
Moreover, the only assignment of error brought forward for consideration on this appeal is based upon exception to the judgment from which appeal is taken. Such assignment of error, as recently restated in Simmons v. Lee, ante, 216, and in numerous cases there cited, raises only the questions (1) as to whether the facts as found by the judge are sufficient to support the judgment, and (2) as to whether error in matters of law appears upon the face of the record.
In this connection it is apparent, from a reading of the pleadings and of the motion of defendant McSwain to set aside the judgment originally taken against him in this action, that the facts found by the court in respect to a show of meritorious defense, were made under misapprehension of both the law and the facts.
*234Tbe defense set up by defendant MeSwain in bis answer is tbat prior to tbe dates of alleged transaction on wbicb suit is based, plaintiffs bad actual notice of bis retirement from tbe business referred to as Davidson Greenhouse. Tbis is an averment of a meritorious defense, even tbougb it be found as a fact tbat MeSwain and Wacaster were partners trading as Davidson Greenhouse. Straus v. Sparrow, 148 N.C. 309, 62 S.E. 308; Jenkins v. Renfrow, 151 N.C. 323, 66 S.E. 212. See also Scheiffelin v. Stevens, 60 N.C. 105; Ellison v. Sexton, 105 N.C. 356, 11 S.E. 180, 180 Am. St. 907; Alexander v. Harkins, 120 N.C. 452, 27 S.E. 120; Bynum and Paschal v. Clark, 125 N.C. 352, 34 S.E. 438; Supply Co. v. Lynn, 173 N.C. 445, 92 S.E. 145.
And it would be tbe averment of a meritorious defense if it be found tbat MeSwain, as be avers, bad been trading under tbe name of Davidson Greenhouse, with Wacaster as tbe manager of tbe business, and be, MeSwain, bad sold tbe business to Wacaster. Compare the principle enunciated in Sibley v. Gilmer, 124 N.C. 631, 32 S.E. 964.
Also in tbe findings of fact made by tbe judge it appears as a fact “tbat tbis defendant MeSwain has failed to allege . . . any notice to plaintiffs of tbe alleged dissolution of said partnership . . .” This is patently a misapprehension of tbe averments appearing in tbe answer, and stated in tbe motion, and upon tbe face of tbe record.
For reasons pointed out, tbe findings of fact and ruling thereon made by tbe judge below will be and are set aside, and tbe cause is remanded for further proceedings as to justice appertains and tbe rights of tbe parties may require.
Error and remanded.