Crye v. . Stoltz

138 S.E. 167, 193 N.C. 802, 1927 N.C. LEXIS 464

• Court: Supreme Court of North Carolina
• Decided: May 25, 1927
• Status: Published

Opinion

Adams, J.

At any time within one year after notice thereof the judge, upon such terms as may be just, may relieve a party from a judgment taken against him through his mistake, inadvertence, surprise, or excusable neglect. C. S., 600. There are numerous decisions which hold that the applicant for relief under this section must show a mérito rious defense as well as mistake, inadvertence, surprise, or excusable neglect. Cook v. Bailey, 190 N. C., 599; Duffer v. Brunson, 188 N. C., 789; Bank v. Duke, 187 N. C., 386; Land Co. v. Wooten, 177 N. C., 248; Crumpler v. Hines, 174 N. C., 283. In the judgment appealed from there is an express finding, not only that no surprise or excusable neglect has been proved, but that the defendants have been negligent, and have failed to show any meritorious defense to the plaintiff’s cause of action. These findings, supported by the evidence, are conclusive, and therefore not reviewable on appeal. Turner v. Grain Co., 190 N. C., 331.

In our opinion’the appellant’s position that the clerk had no authority to render judgment by default, or to declare the lien is not maintainable. Judgment by default final may be had, as provided in C. S., 595; and in 3 C. S., 593, it is provided that the clerk may enter such judgments by default final as are authorized by section 595 et seq. It is further provided by the act of 1925 that execution may be issued by the clerk upon judgments before him under section 593, and that he may make a final order of disbursement. Public Laws 1925, ch. 222. We see no practical or satisfactory reason why an execution should not be issued, under the facts before us, by virtue of this section.

The appellant suggests that the judgment rendered by the clerk had the effect of excluding, without a hearing, all other parties who had filed liens against the property. This, however, is a matter for the lienors. As to them, the judgment makes no provision, and as their status has not been adjudicated, of course they have not appealed. It is, therefore, not necessary to discuss as an academic question the bearing on the appellant’s contention of Harris v. Cheshire, 189 N. C., 219, and similar cases.

The fifth assignment of error advances the proposition that as the defendant corporation made a conveyance of its property to .trustees for the benefit of creditors prior to. the institution of the present action, or the filing of the plaintiff’s lien, the trustees not being parties, the judge should have vacated the judgment given by the clerk. We think a sufficient answer to this position may be found in the following paragraph of the deed of trust: “It is the intent and purpose of this instrument, and it is understood and agreed by the parties hereto, that the execution and delivery and the acceptance of the same shall not have the effect of destroying, affecting, or operating as a waiver of any liens or lien rights which any contractors, subcontractors, material furnishers, mechanics, or laborers may now possess, or to which they may now be entitled under the laws of North Carolina, and that all such liens or lien rights are fully reserved and preserved in any and all property of the Fleetwood of Hendersonville Hotel Corporation.”

In view of this provision, we do not perceive bow tbe failure to make tbe trustees parties to tbe action operates as a preference wbicb, under tbe judge’s findings, would defeat tbé judgment recovered by tbe plaintiff.

Tbe judgment is

Affirmed.