Harris v. Chapman

77 S.E.2d 658, 238 N.C. 308, 1953 N.C. LEXIS 421

Opinion

Per Curiam.

Tbe showing made by tbe defendant on bis motion meets tbe requirements for a new trial for newly discovered evidence. Tbe motion is allowed. See Chrisco v. Yow, 153 N.C. 434, top p. 436, 69 S.E. 422; Moore v. Tidwell, 193 N.C. 855, 138 S.E. 407. Tbis renders moot tbe questions presented by tbe appeal and restores tbe status quo as it existed immediately before tbe bearing before Judge Bone. Tbe cause will be remanded for hearing de no.vo on defendant’s motion (1) to set aside tbe judgment by default and inquiry entered by tbe Clerk, (2) to set aside tbe final judgment entered at tbe February Term, 1953, and (3) for leave to defend under tbe provisions of G.S. 1-108; and it is so ordered. See Franklin v. School, 213 N.C. 263, 195 S.E. 792. Let tbe defendant pay tbe costs. Herndon v. Railroad Co., 121 N.C. 498, 28 S.E. 144.

Tbe plaintiff’s motion to dismiss under Eule 28 is denied.

Eemanded.