Fellos v. . Allen

Supreme Court of North Carolina

Fellos v. . Allen

162 S.E. 905, 202 N.C. 375, 1932 N.C. LEXIS 509

CourtSupreme Court of North Carolina

DecidedMarch 16, 1932

StatusPublished

Cited by4 cases

This text of 162 S.E. 905 (Fellos v. . Allen) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Fellos v. . Allen, 162 S.E. 905, 202 N.C. 375, 1932 N.C. LEXIS 509 (N.C. 1932).

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Opinion

BeogdeN, J.

The statutory conditions precedent warranting the setting aside of a judgment duly and regularly entered, are: first, the motion must be made “within one year after notice thereof”; second, the court must find as a fact, the existence of “mistake, inadvertence, surprise or excusable neglect.” C. S., 600. The Supreme Court in various dicisions has added a third condition precedent to the statute, to wit: That the judge must find that the moving party had a meritorious defense. If no answer has been filed, the existence of a meritorious defense must necessarily appear from affidavit.

The judge finds expressly that the defendants have no meritorious defense. Such finding, when supported by evidence, is conclusive and not reviewable on appeal. Crye v. Stoltz, 193 N. C., 802, 138 S. E., 167. It must be observed that the judge declares “that the defendant offered no evidence tending to show a meritorious defense to the plaintiff’s cause of action,” but he further declares “there was evidence offered by the defendant that the verdict of the jury was much in excess of the injury.” If the judge had found as a fact “that the verdict o'f the jury was much in excess of the injury,” then the legal inquiry would have been: If the verdict is greatly in excess of the injury suffered, does such fact constitute a prima facie showing of a meritorious defense? However, it is obvious that, in the absence of such specific finding, no such legal question is presented. Hence the judgment must be affirmed.

The defendants attack the verification of the complaint upon the ground that the plaintiff, while signing the complaint, took an oath with uplifted hand rather than upon the Bible. This attack cannot be sustained. In the language of Currie v. Mining Co., 157 N. C., 209, 72 S. E., 980, it sufficiently “appears that the plaintiff was sworn and by an officer authorized to administer oaths. It was not necessary that it *378 should be subscribed.” Such verification was held to he a substantial compliance with the law. Alford v. McCormac, 90 N. C., 151.

So, in the case at bar, while the oath was not administered with strict formality, it cannot be said, as a matter of law, that the complaint was unverified.

Affirmed.

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BeogdeN, J.

The statutory conditions precedent warranting the setting aside of a judgment duly and regularly entered, are: first, the motion must be made “within one year after notice thereof”; second, the court must find as a fact, the existence of “mistake, inadvertence, surprise or excusable neglect.” C. S., 600. The Supreme Court in various dicisions has added a third condition precedent to the statute, to wit: That the judge must find that the moving party had a meritorious defense. If no answer has been filed, the existence of a meritorious defense must necessarily appear from affidavit.

The judge finds expressly that the defendants have no meritorious defense. Such finding, when supported by evidence, is conclusive and not reviewable on appeal. Crye v. Stoltz, 193 N. C., 802, 138 S. E., 167. It must be observed that the judge declares “that the defendant offered no evidence tending to show a meritorious defense to the plaintiff’s cause of action,” but he further declares “there was evidence offered by the defendant that the verdict of the jury was much in excess of the injury.” If the judge had found as a fact “that the verdict o'f the jury was much in excess of the injury,” then the legal inquiry would have been: If the verdict is greatly in excess of the injury suffered, does such fact constitute a prima facie showing of a meritorious defense? However, it is obvious that, in the absence of such specific finding, no such legal question is presented. Hence the judgment must be affirmed.

The defendants attack the verification of the complaint upon the ground that the plaintiff, while signing the complaint, took an oath with uplifted hand rather than upon the Bible. This attack cannot be sustained. In the language of Currie v. Mining Co., 157 N. C., 209, 72 S. E., 980, it sufficiently “appears that the plaintiff was sworn and by an officer authorized to administer oaths. It was not necessary that it *378 should be subscribed.” Such verification was held to he a substantial compliance with the law. Alford v. McCormac, 90 N. C., 151.

So, in the case at bar, while the oath was not administered with strict formality, it cannot be said, as a matter of law, that the complaint was unverified.

Affirmed.

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162 S.E. 905, 202 N.C. 375, 1932 N.C. LEXIS 509, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fellos-v-allen-nc-1932.

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