Franks v. Jenkins

101 S.E.2d 423, 247 N.C. 586, 1958 N.C. LEXIS 577

Opinion

Per Curiam.

The findings of fact established (1) a meritorious defense, and (2) inexcusable neglect. Hence, defendant’s motion was properly denied. Sanders v. Chavis, 243 N.C. 380, 90 S.E. 2d 749.

Affidavits offered by defendant provided the only information before the court as to what occurred in New York after the court papers were served on defendant on April 12, 1957. The court was not obliged to accept as true each and every statement of fact set forth in these affidavits.

Unquestionably, the court’s findings of fact, which are supported by competent (defendant’s) evidence, support the court’s legal conclusion and judgment.

Defendant’s liability insurance carrier is not a party to this action. Its neglect is relevant herein only to the extent it may be imputed to the defendant. Stephens v. Childers, 236 N.C. 348, 72 S.E. 2d 849. Hence, the findings of fact relating thereto are not determinative of the rights and liabilities of defendant and his liability insurance carrier inter se. Sanders v. Chavis, supra.

By amendment to its motion, defendant asserts that since service was made under G.S. 1-105, G.S. 1-108 entitles him to have the judgment set aside and to defend the action on its merits. But G.S. 1-108, in respect of relief after judgment, applies only when the service is by publication. As to service on defendant in accordance with G.S. 1-105, this statute provides that such service “shall be of the same legal force and validity as if served on him personally.”

Affirmed.