Parnell v. . Ivey

Supreme Court of North Carolina
Parnell v. . Ivey, 197 S.E. 128 (N.C. 1938)
213 N.C. 644; 1938 N.C. LEXIS 164
Clarkson

Parnell v. . Ivey

Opinion of the Court

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. *646 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.

Reference

Full Case Name
H. P. Parnell and His Wife, Lucy M. Parnell v. H. C. Ivey and His Wife, Flora Ivey.
Cited By
3 cases
Status
Published