Surviving Partners of Alston, Young & Co. v. Heirs of Parish

1 N.C. 91

• Court: Supreme Court of North Carolina
• Decided: June 15, 1800
• Status: Published

Opinion

By the Court.

The default in this case, was taken in a manner to the rules of practice established by the court law, and is therefore unexceptionable in point of regularity. The discretion residing in the Court, to set aside such judgments, ought to be exercised with a view to the attainment of justice, and the prevention of delay under the particular circumstances of each case. It is necessary not only that the application should be made within a reasonable time, but the merits likewise which the Defendant seeks to have tried, ought to be clearly and concisely stated in an affidavit. It follows that this default was improperly set aside, because done at the third term after it was duly taken, and without imposing on the Defendant the usual terms of entering a plea which should bring forward the merits of the cause.