Gold v. . Maxwell

90 S.E. 115, 172 N.C. 149, 1916 N.C. LEXIS 252

• Court: Supreme Court of North Carolina
• Decided: October 4, 1916
• Status: Published

Opinion

Allen, J.

It was adjudged at October Term, 1915, that the protest was not in proper form, and this judgment has not been appealed from, and is binding on the parties, although it may have been erroneous, as the protestant now contends. Weeks v. McPhail, 128 N. C., 131.

It was also within the discretion of the judge presiding to allow or disallow the motion to file an amended protest after the time limited in the judgment of Judge Bond (Church v. Church, 158 N. C., 564), and we cannot interfere with the exercise of the discretion when, as in this case, there is no evidence of its abuse.

The motion to set aside the judgment at the time it was signed for excusable neglect was properly refused, as the remedy under Revisal, sec. 513, applies only to judgments rendered at prior terms (McCulloch v. Doak, 68 N. C., 267), for the reason that orders and judgments are in fieri during the term. Gwinn v. Parker, 119 N. C., 19.

Affirmed.