Parnell v. . Ivey

197 S.E. 128, 213 N.C. 644, 1938 N.C. LEXIS 164

• Court: Supreme Court of North Carolina
• Decided: May 25, 1938
• Status: Published

Opinion

Clarkson, J.

Section 600, supra, is, in part: “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,” etc.

In Hooks v. Neighbors, 211 N. C., 382 (385), is the following: “In order to set aside a judgment for mistake, surprise, or excusable neglect, there must be a showing of a meritorious defense so that the courts can reasonably pass upon the question whether another trial, if granted, would result advantageously for the defendant. Bank v. Duke, 187 N. C., 386; Hill v. Hotel Co., 188 N. C., 586; Fellos v. Allen, 202 N. C., 375. A judgment may be set aside under this section if the moving party can show excusable neglect and that he has a meritorious defense. Dunn v. Jones, 195 N. C., 354, 356; Chevrolet Co. v. Ingle, 202 N. C., 158; Bowie v. Tucher, 206 N. C., 56, 59.”

The court below as to the attorney found the facts. As to meritorious defense the finding was “and that defendants have a meritorious defense to the pending action.” This is not sufficient; there should be a finding of the facts showing a meritorious defense. See Clayton v. Clark, 212 N. C., 374; Meece v. Commercial Credit Co., 201 N. C., 139.

In the judgment of the court below there is

Error.