Harris v. Chapman, 238 N.C. 308 (1953)

Sept. 30, 1953 · Supreme Court of North Carolina

238 N.C. 308

T. D. HARRIS v. GEORGE M. CHAPMAN.

(Filed 30 September, 1953.)

Appeal and Error § 37 % •' Trial § 47—

Appellant’s motion in the Supreme Court for a new trial on the ground of evidence relating to the merits discovered after the cause was heard in the Superior Court is allowed, the appellant having met the requirements for a new trial for newly discovered evidence.

Appeal by defendant from Bone, J., holding the courts of the First Judicial District, at Chambers in Elizabeth City, 25 June, 1953. From TYRRELL.

This action was instituted in the Superior Court of Tyrrell County 5 December, 1951, on which day the plaintiff filed duly verified complaint alleging that the defendant is indebted to him in the amount of $15,000 for services rendered in assisting in the sale of land and timber belonging to the defendant. Nine tracts of real estate belonging to the defendant situate in Tyrrell County were attached at the time of the commencement of the action. The plaintiff and the defendant are nonresidents of this State. Both reside in 'Washington, D. C. The defendant was served with summons by publication.

On 7 April, 1952, the Clerk of the Superior Court rendered judgment in favor of the plaintiff by default and inquiry, and the cause was transferred to the civil issue docket for inquiry and determination in respect to the amount of the recovery. At the February Term, 1953, inquiry was executed, resulting in a verdict and judgment in favor of the plaintiff and against the defendant in the amount of $15,000.

On 4 April, 1953, the defendant filed motion to set aside both judgments and for leave to defend under the provisions of G.S. 1-108. The motion as it related to the judgment by default and inquiry was heard first by the Clerk. He refused to set aside the judgment. The defendant excepted and appealed to the Judge. Thereafter, by consent, the appeal from the Clerk’s ruling and also the motion as it related to the final judgment were heard by Judge Bone on affidavits offered by both sides. Following this hearing, judgment was entered affirming the Clerk and denying all phases of the defendant’s motion. From the judgment so entered, the defendant appealed.

Pending appeal, tbe defendant lodged a motion in this Court for a new trial on tbe ground of newly discovered evidence, alleging that additional information vital to tbe merits of bis cause as beard by Judge Bone, came to bis attention pending tbe appeal to tbis Court.

Robert B. Lowry, Sam S. Woodley, and Pritchett ■& Coohe for plaintiff, appellee.

McMullan & Aydlett for defendant, appellant.

Per Curiam.

Tbe showing made by tbe defendant on bis motion meets tbe requirements for a new trial for newly discovered evidence. Tbe motion is allowed. See Chrisco v. Yow, 153 N.C. 434, top p. 436, 69 S.E. 422; Moore v. Tidwell, 193 N.C. 855, 138 S.E. 407. Tbis renders moot tbe questions presented by tbe appeal and restores tbe status quo as it existed immediately before tbe bearing before Judge Bone. Tbe cause will be remanded for hearing de no.vo on defendant’s motion (1) to set aside tbe judgment by default and inquiry entered by tbe Clerk, (2) to set aside tbe final judgment entered at tbe February Term, 1953, and (3) for leave to defend under tbe provisions of G.S. 1-108; and it is so ordered. See Franklin v. School, 213 N.C. 263, 195 S.E. 792. Let tbe defendant pay tbe costs. Herndon v. Railroad Co., 121 N.C. 498, 28 S.E. 144.

Tbe plaintiff’s motion to dismiss under Eule 28 is denied.

Eemanded.