Hertford Livestock & Supply Co. v. Roberson, 245 N.C. 588 (1957)

Feb. 27, 1957 · Supreme Court of North Carolina

245 N.C. 588

HERTFORD LIVESTOCK AND SUPPLY CO., a Corporation, v. D. M. ROBERSON, JOHN B. ROBERSON, GEORGE M. PEEL, and ETHEL G. ROBERSON.

(Filed 27 February, 1957.)

Judgments § 27a—

Where the findings of the trial court that movants had failed to show a meritorious defense or show that -the judgment against them had been taken through their surprise or excusable neglect, are supported by the evidence, order refusing to set aside the judgment under G.S. 1-220 will be affirmed.

Appeal by movants John B. Roberson and George M. Peel from Frizzelle, J., 20 June 1956, PeRquimaNS.

This was a motion made by defendants John B. Roberson and George M. Peel, under G.S. 1-220, to set aside a judgment rendered against them, and their codefendants D. M. Roberson and Ethel G. Roberson, jointly and severally, at the January Term 1956 of Perquimans County Superior Court, upon the ground that judgment in the action was taken against them, the movants, through surprise or excusable neglect. By consent of the parties the motion came on to be heard before Frizzelle, J., Presiding Judge of the First Judicial District for the Spring Term 1956, at Elizabeth City, county seat of Pasquotank County, which is in the First Judicial District, on 20 June 1956.

From an order denying their motion the movants John B. Roberson and George M. Peel appeal.

Carroll R. Holmes and John H. Hall for Plaintiff, Appellee.

Peel & Peel for Defendants, Appellants.

PeR Curiam.

Judge Frizzelle found the facts in detail, and specifically found that the movants John B. Roberson and George M. Peel failed to show that they have a meritorious defense to the cause of action alleged against them. He concluded upon the facts found that the movants failed to show that judgment was rendered against them at the January Term 1956 of Perquimans Superior Court through their surprise or excusable neglect, and that they had failed to show that they had a meritorious defense to said action. The findings of fact by the trial judge upon the hearing of a motion to set aside a judgment for excusable neglect, G.S. 1-220, are conclusive on appeal, when supported by competent evidence. Carter v. Anderson, 208 N.C. 529, 181 S.E. 750; Sanders v. Chavis, 243 N.C. 380, 90 S.E. 2d 749. There is competent evidence to support the judge’s findings of fact, and his findings of fact support his conclusions and order.

Affirmed.