Clarkson, J.
The assignments of error raise but one main contention that at the time of the trial of the action the defendant’s intestate, H. J. Duke, was
non compos mentis
and was not represented by a guardian
ad litem.
H. J. Duke has died since the verdict and judgment, and the defendant, Otho H. Duke, has been appointed his administrator. The defendant administrator made a motion in the cause in the court below to set aside the judgment. The motion is based on C. S., 600, which is as follows:
“The judge shall, upon such terms as may be just, at any time within one year after notice thereof, relieve a party from a judgment, order, verdict or other proceeding taken against him through his mistake,' inadvertence, surprise or excusable neglect, and may supply an omission in any proceeding.”
It is well settled in this State that the application should show not only mistake, inadvertence, surprise or excusable neglect, but
also a
.
meritorious defense. Land Co. v. Wooten, 177
N. C., 250, and cases cited; 23 Cyc., 962, 1031.
In the instant case a final judgment is asked to be set aside. If this judgment is set aside, the same evidence will be heard on a new trial, and the issues as heretofore found against defendant’s intestate submitted again to a jury. It will be “threshing over old straw.” There is nothing in the record to indicate that there is any newly discovered evidence material to the cause that might change the present verdict and judgment. There is a presumption that a judgment in a court of competent jurisdiction is regular and valid.
Allen, J.,
in
Crumpler v. Hines,
174 N. C., 284, says: “One who asks to be relieved from a judgment on the ground of excusable neglect must show merit, as otherwise the court would be asked to do the vain thing of setting aside a judgment when it would be its duty to enter again the same judgment on motion of the adverse party. If he is a
plaintiff, be must allege facts constituting a cause of action, and if a defendant, facts wbicb will be a defense. It is not required tbat these facts be established conclusively on the hearing of the motion, but they must be alleged in good faith, and must, if true, in the one case show a cause of action, and in the other a defense. In other words, the facts alleged must make a
prima facie
cause of action or defense, the ultimate and final determination of these being left to the proper tribunal, if the judgment is set aside.
Mauney v. Gidney,
88 N. C., 202;
English v. English,
87 N. C., 497;
Norton v. McLaurin,
125 N. C., 189;
Turner v. Machine Co., 188
N. C., 381;
Minton v. Hughes,
158 N. C.,
586.”
Clark, J.,
in
Norton v. McLaurin, supra,
says: “This is a motion to set aside a judgment for excusable neglect under The Code, sec. 274. The findings of fact by the judge are final
(Weil v. Woodard,
104 N. C., 94;
Albertson v. Terry,
108 N. C., 75;
Sykes v. Weatherly,
110 N. C., 131), unless upon an exception that there was no evidence as to some fact found by him
(Marion v. Tilley,
119 N. C., 473), or failure to find material facts
(Smith v. Hahn,
80 N. C., 241).” See
Hardware Co. v. Buhmann,
159 N. C., 512;
Mann v. Hall,
163 N. C., 51;
S. v. Jackson,
183 N. C., 698.
It is the duty of the court below to find the facts, and his finding is ordinarily conclusive. Upon the facts found, the conclusion of law only is reviewable.
The court in the judgment distinctly says, “After hearing allegations and evidence of both parties, the court finds the following facts.” Among the many facts found is “No question of the insanity of the defendant H. J. Duke at the time of the trial was then raised or suggested.”
At the trial the deposition of H. J. Duke was read; he was represented by counsel; his son, the present administrator, was present; his other sons, sons-in-law, neighbors and friends were present.
The court below, after finding the facts set out in the record, “declined to pass on the question of the sanity of H. J. Duke at the time of the verdict and judgment, and doth decline the motion of defendant to set aside the verdict and judgment.”
From the findings of fact by the court below, in law, did he commit error in refusing to pass on the sanity of H. J. Duke and in refusing to set aside the verdict and judgment? "We think not. If a verdict is rendered and judgment obtained against a person
non compos mentis,
without a guardian
ad litem,
it is not void but voidable. So, conceding that this was a voidable judgment, should it be set aside for excusable neglect? Under the facts, we think not. H. J. Duke’s sons, sons-in-law, neighbors and friends were all present. His counsel were present. No suggestion was made to the judge holding court or to the attorneys
for plaintiff that the defendant’s intestate was
non compos mentis.
The trial was regular in all respects. The plaintiffs won, and now this motion is made to set aside the verdict and judgment and a request to the court below to go into the sanity of H. J. Duke at the time of the verdict and judgment. The due and orderly administration of justice under the facts found by the court below would be hampered if the judgment was set aside.
We think the true position is set forth in Buswell on Insanity, sec. 131, as follows: “Unsoundness of mind of a defendant, existing to such an extent as to render him incapable of transacting or understanding business, is sufficient cause to justify the setting aside his default or appearance in a civil suit. But it seems that, in civil as well as in criminal proceedings, the insanity of a party at the time of trial is not a ground for granting a new trial upon his restoration to sanity,
unless it is made to appear to the court that a new result would probably be reached if a new trial were granted, and that, by reason of the party’s incapacity, injustice was done him on the former trial.”
(Italics ours.)
We do not think the case of
Craddock v. Brinkley,
177 N. C., 124, is contra to the position taken in this case. In that case it was said: “The jury find that plaintiff was insane and confined in an asylum at the time the former action was instituted, and also at the time the consent judgment was entered, and that the twenty acres in controversy are her property.” In that case,the plaintiff was a married woman.
In
Stigers v. Brent,
50 Md., 214 (33 Am. Rep., 319), it is said:
“The naked point is presented whether a lunatic can be sued at law for a debt which he contracted when of sound mind, and a judgment therefor obtained against him. Upon this point all the authorities agree, unless where some statute intervenes to prohibit it. In this State no such statute exists. . . . The text-books are also agreed upon the point. In Freeman on Judgments, 123, sec.
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Clarkson, J.
The assignments of error raise but one main contention that at the time of the trial of the action the defendant’s intestate, H. J. Duke, was
non compos mentis
and was not represented by a guardian
ad litem.
H. J. Duke has died since the verdict and judgment, and the defendant, Otho H. Duke, has been appointed his administrator. The defendant administrator made a motion in the cause in the court below to set aside the judgment. The motion is based on C. S., 600, which is as follows:
“The judge shall, upon such terms as may be just, at any time within one year after notice thereof, relieve a party from a judgment, order, verdict or other proceeding taken against him through his mistake,' inadvertence, surprise or excusable neglect, and may supply an omission in any proceeding.”
It is well settled in this State that the application should show not only mistake, inadvertence, surprise or excusable neglect, but
also a
.
meritorious defense. Land Co. v. Wooten, 177
N. C., 250, and cases cited; 23 Cyc., 962, 1031.
In the instant case a final judgment is asked to be set aside. If this judgment is set aside, the same evidence will be heard on a new trial, and the issues as heretofore found against defendant’s intestate submitted again to a jury. It will be “threshing over old straw.” There is nothing in the record to indicate that there is any newly discovered evidence material to the cause that might change the present verdict and judgment. There is a presumption that a judgment in a court of competent jurisdiction is regular and valid.
Allen, J.,
in
Crumpler v. Hines,
174 N. C., 284, says: “One who asks to be relieved from a judgment on the ground of excusable neglect must show merit, as otherwise the court would be asked to do the vain thing of setting aside a judgment when it would be its duty to enter again the same judgment on motion of the adverse party. If he is a
plaintiff, be must allege facts constituting a cause of action, and if a defendant, facts wbicb will be a defense. It is not required tbat these facts be established conclusively on the hearing of the motion, but they must be alleged in good faith, and must, if true, in the one case show a cause of action, and in the other a defense. In other words, the facts alleged must make a
prima facie
cause of action or defense, the ultimate and final determination of these being left to the proper tribunal, if the judgment is set aside.
Mauney v. Gidney,
88 N. C., 202;
English v. English,
87 N. C., 497;
Norton v. McLaurin,
125 N. C., 189;
Turner v. Machine Co., 188
N. C., 381;
Minton v. Hughes,
158 N. C.,
586.”
Clark, J.,
in
Norton v. McLaurin, supra,
says: “This is a motion to set aside a judgment for excusable neglect under The Code, sec. 274. The findings of fact by the judge are final
(Weil v. Woodard,
104 N. C., 94;
Albertson v. Terry,
108 N. C., 75;
Sykes v. Weatherly,
110 N. C., 131), unless upon an exception that there was no evidence as to some fact found by him
(Marion v. Tilley,
119 N. C., 473), or failure to find material facts
(Smith v. Hahn,
80 N. C., 241).” See
Hardware Co. v. Buhmann,
159 N. C., 512;
Mann v. Hall,
163 N. C., 51;
S. v. Jackson,
183 N. C., 698.
It is the duty of the court below to find the facts, and his finding is ordinarily conclusive. Upon the facts found, the conclusion of law only is reviewable.
The court in the judgment distinctly says, “After hearing allegations and evidence of both parties, the court finds the following facts.” Among the many facts found is “No question of the insanity of the defendant H. J. Duke at the time of the trial was then raised or suggested.”
At the trial the deposition of H. J. Duke was read; he was represented by counsel; his son, the present administrator, was present; his other sons, sons-in-law, neighbors and friends were present.
The court below, after finding the facts set out in the record, “declined to pass on the question of the sanity of H. J. Duke at the time of the verdict and judgment, and doth decline the motion of defendant to set aside the verdict and judgment.”
From the findings of fact by the court below, in law, did he commit error in refusing to pass on the sanity of H. J. Duke and in refusing to set aside the verdict and judgment? "We think not. If a verdict is rendered and judgment obtained against a person
non compos mentis,
without a guardian
ad litem,
it is not void but voidable. So, conceding that this was a voidable judgment, should it be set aside for excusable neglect? Under the facts, we think not. H. J. Duke’s sons, sons-in-law, neighbors and friends were all present. His counsel were present. No suggestion was made to the judge holding court or to the attorneys
for plaintiff that the defendant’s intestate was
non compos mentis.
The trial was regular in all respects. The plaintiffs won, and now this motion is made to set aside the verdict and judgment and a request to the court below to go into the sanity of H. J. Duke at the time of the verdict and judgment. The due and orderly administration of justice under the facts found by the court below would be hampered if the judgment was set aside.
We think the true position is set forth in Buswell on Insanity, sec. 131, as follows: “Unsoundness of mind of a defendant, existing to such an extent as to render him incapable of transacting or understanding business, is sufficient cause to justify the setting aside his default or appearance in a civil suit. But it seems that, in civil as well as in criminal proceedings, the insanity of a party at the time of trial is not a ground for granting a new trial upon his restoration to sanity,
unless it is made to appear to the court that a new result would probably be reached if a new trial were granted, and that, by reason of the party’s incapacity, injustice was done him on the former trial.”
(Italics ours.)
We do not think the case of
Craddock v. Brinkley,
177 N. C., 124, is contra to the position taken in this case. In that case it was said: “The jury find that plaintiff was insane and confined in an asylum at the time the former action was instituted, and also at the time the consent judgment was entered, and that the twenty acres in controversy are her property.” In that case,the plaintiff was a married woman.
In
Stigers v. Brent,
50 Md., 214 (33 Am. Rep., 319), it is said:
“The naked point is presented whether a lunatic can be sued at law for a debt which he contracted when of sound mind, and a judgment therefor obtained against him. Upon this point all the authorities agree, unless where some statute intervenes to prohibit it. In this State no such statute exists. . . . The text-books are also agreed upon the point. In Freeman on Judgments, 123, sec. 152, it is said: ‘While an occasional difference of opinion manifests itself in regard to the propriety and possibility of binding
femes covert
and infants by judicial proceedings, in which they were not represented by some competent authority, no such difference has been made apparent in relation to a more unfortunate and more defenseless class of persons; but by a concurrence of judicial authority, lunatics are held to be within the jurisdiction of the courts. Judgments against them, it is said, are neither void nor voidable; they cannot be reversed for error on account of defendant’s lunacy. ... In a suit against a lunatic, the judgment is properly entered against him, and not against his guardian.’ See, also, Shelford on Lunatics, pp. (m) 407 and 429, and 3 Robinson’s Practice, p. 240, par. 3, and English authorities there cited.”
We do not go as far as the
Stigers’ case, supra.
Our State, in its humanity towards those whom “the finger of God has touched,” has passed the following statutes:
C. S. 451. “In all actions and special proceedings, when any of the defendants are-infants, idiots, lunatics, or persons
non compos mentis,
whether residents or nonresidents of- this State, they must defend by their general or testamentary guardian, if they have one within this State-; and if they have no general or testamentary guardian in the State, and any of them has been summoned, the court in which said action or special proceeding is pending, upon motion of any of the parties, may appoint some discreet person to act as guardian
ad litem,
to defend in behalf of such infants, idiots, lunatics, or persons
non compos mentis.
The guardian so appointed shall, if the cause is a civil action, file his answer to the complaint within the time required for other defendants, unless the time is extended by the court; and if the cause is a special proceeding, a copy of the complaint, with the summons, must be served on him. After twenty days notice of the summons and complaint in the special proceeding, and after answer filed as above prescribed in the civil action, the court may proceed to final judgment as effectually and in the same manner as if there had been personal service upon the said infant, idiot, lunatic, or person
non compos mentis,
defendants.”
C. S., 406. “On the trial of any action or special proceeding to which an insane person is a party, such insane person is deemed to have pleaded specially any defense, and shall on trial have the benefit of any defense, whether pleaded or not, that might have been made for him by his guardian or attorney under the provisions of this chapter. The court, at any time before the action or proceeding is finally disposed of, may order the bringing in, by proper notice, of one or more of the near relatives or friends of the insane person, and may make such other order as it deems necessary for his proper defense.”
The above section (406) gives the court discretion at any time before the action is finally disposed of to order or bring in by proper notice one or more of the
near relatives or friends of the insane person,
and may make such other order as it deems necessary for a proper defense.
- In the original trial of the case, H. J. Duke’s attorneys, sons, sons-in-law, neighbors and friends were all present.
Without doing so
seriatim,
we have discussed the positions taken by defendant in the assignments of error.
From the facts and circumstances of this case we think the court below correct in its judgment.
Affirmed.