Boyd v. Marsh

Court of Appeals of North Carolina

Boyd v. Marsh

267 S.E.2d 394, 47 N.C. App. 491, 1980 N.C. App. LEXIS 3138

CourtCourt of Appeals of North Carolina

DecidedJuly 1, 1980

Docket7921DC1129

StatusPublished

Cited by9 cases

This text of 267 S.E.2d 394 (Boyd v. Marsh) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Boyd v. Marsh, 267 S.E.2d 394, 47 N.C. App. 491, 1980 N.C. App. LEXIS 3138 (N.C. Ct. App. 1980).

Pincite

Opinion

ARNOLD, Judge.

It is well-established that a party served with a summons must give the matter the attention which a person of ordinary prudence gives to his important business, and failure to do so is not excusable neglect under G.S. 1A-1, Rule 60(b)(1). See Ellison v. White, 3 N.C. App. 235, 164 S.E. 2d 511 (1968); Meir v. Walton, 2 N.C. App. 578, 163 S.E. 2d 403 (1968) and cases cited therein. In the instant case the facts do not support the court’s conclusion that defendant’s failure to answer was excusable. Defendant has a ninth grade education and can read and write. He previously has employed attorneys in other matters. The fact that in the present situation he did not believe plaintiffs could prevail does not excuse his failure to file an answer and pursue his defense. Nor does the fact that in his motion he set out a meritorious defense justify the setting aside of the default judgment, since in the absence of a showing of excusable neglect, the ques *493 tion of meritorious defense becomes immaterial. Meir v. Walton, supra.

The court’s order setting aside the default judgment is

Reversed.

Judges Martin (Robert M.) and Wells concur.

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ARNOLD, Judge.

It is well-established that a party served with a summons must give the matter the attention which a person of ordinary prudence gives to his important business, and failure to do so is not excusable neglect under G.S. 1A-1, Rule 60(b)(1). See Ellison v. White, 3 N.C. App. 235, 164 S.E. 2d 511 (1968); Meir v. Walton, 2 N.C. App. 578, 163 S.E. 2d 403 (1968) and cases cited therein. In the instant case the facts do not support the court’s conclusion that defendant’s failure to answer was excusable. Defendant has a ninth grade education and can read and write. He previously has employed attorneys in other matters. The fact that in the present situation he did not believe plaintiffs could prevail does not excuse his failure to file an answer and pursue his defense. Nor does the fact that in his motion he set out a meritorious defense justify the setting aside of the default judgment, since in the absence of a showing of excusable neglect, the ques *493 tion of meritorious defense becomes immaterial. Meir v. Walton, supra.

The court’s order setting aside the default judgment is

Reversed.

Judges Martin (Robert M.) and Wells concur.

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Bluebook (online)

267 S.E.2d 394, 47 N.C. App. 491, 1980 N.C. App. LEXIS 3138, Counsel Stack Legal Research, https://law.counselstack.com/opinion/boyd-v-marsh-ncctapp-1980.

Opinion

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