Taylor v. . Gentry

135 S.E. 327, 192 N.C. 503, 1926 N.C. LEXIS 333

Opinion

Stacy, C. J.

Plaintiff obtained judgment by default final in tbe recorder’s court of tbe town of Reidsville on 13 October, 1925. Tbis was set aside fourteen days thereafter, on motion of tbe defendant, on tbe ground of “mistake, inadvertence, surprise or excusable neglect,” under O. S., 600. On appeal by tbe plaintiff to tbe Superior Court tbe order setting aside tbe judgment in tbe recorder’s court was affirmed.

Plaintiff takes two positions: First, that tbe recorder’s court was without authority to entertain tbe motion, and, as tbe Superior Court could exercise derivative jurisdiction only, it was also without authority to decide tbe question. Sewing Machine Co. v. Burger, 181 N. C., 241. Second, that on tbe facts found, tbe defendant is not entitled to have tbe judgment vacated or set aside.

Without passing upon tbe merits of tbe first position, we deem it sufficient to say that there is no allegation or finding of a meritorious defense. . It is useless to set aside a judgment where there is no real or substantial defense on tbe merits. Land Co. v. Wooten, 177 N. C., 248; Norton v. McLaurin, 125 N. C., 185. “One who asks to be relieved from a judgment on the ground of excusable neglect must show merit, as otherwise the court would be asked to do the vain thing of setting aside a judgment when it would be its duty to enter again the same judgment on motion of the adverse party.” Allen, J., in Crumpler v. Mines, 174 N. C., 283.

On the record, there was error in setting aside the judgment.

Reversed.