Cayton v. Clark

• Decision Date: 03 November 1937
• Docket Number: No. 322.,322.
• Citation: 212 N.C. 374,193 S.E. 404
• Parties: CAYTON. v. CLARK et al
• Court: North Carolina Supreme Court

193 S.E. 404

212 N.C. 374

CAYTON.

v.CLARK et al

No. 322.

Supreme Court of North Carolina.

Nov. 3, 1937.

Appeal from Superior Court, Pitt County; E. H. Cranmer, Judge.

Action by R. E. Cayton against G. A. Clark and Mason Howard. From an order denying a motion to vacate a judgment for plaintiff, defendant Howard appeals.

Affirmed.

Motion made under C.S. § 600, as amended by Pub.Acts 1921, Ex.Sess., c. 92, § 14, to vacate judgment on ground of excusable neglect.

The case was tried at the April term, 1937, Pitt superior court, in the absence of the defendant and his then counsel (he is now represented by other counsel), albeit the case was regularly set as the first on the calendar for Monday, 19 April, and continued until late in the afternoon of that day to await the arrival of defendant's counsel who lived in Kinston, a distance of thirty miles from Greenville, but who failed to appear.

The judge found the facts relative to defendant's alleged excusable neglect and denied the motion. Defendant appeals.

John G. Dawson, of Kinston, for appellant.

Roberts & Williford, of Greenville, for appellee.

STACY, Chief Justice.

Even if it be conceded that upon the facts found by the judge, the question of excusable neglect may fairly be debatable under the decision in Sutherland v. McLean, 199 N.C. 345, 154 S.E. 662 (delimited in Carter v. Anderson, 208 N. C. 529, 181 S.E. 750, Kerr v. Bank, 205 N.C. 410, 171 S.E. 367, and Dail v. Hawkins, 211 N.C. 283, 189 S.E. 774), still the judgment would seem to be correct as there is neither allegation nor finding of any meritorious defense. This is fatal to appellant's case. Bowie v. Tucker, 197 N.C. 671, 150 S.E. 200; Farmers' & Merchants' Bank v. Duke, 187 N.C. 386, 122 S.E. 1, 34 A.L.R. 215; Jones-Onslow Land Co. v. Wooten, 177 N.C. 248, 98 S. E. 706; Dell School v. Peirce, 163 N.C. 424, 79 S.E. 687; McLeod v. Gooch, 162 N. C. 122, 78 S.E. 4; McKeel Hardware Co. v. Buhmann, 159 N.C. 511, 75 S.E. 731; Norton v. McLaurin, 125 N.C. 185, 34 S. E. 269; Taylor & Fetzer v. Gentry, 192 N.C. 503, 135 S.E. 327; Albertson v. Terry, 108 N.C. 75, 12 S.E. 892. "We do not consider affidavits for the purpose of finding the facts ourselves in motions of this sort." Gardiner v. May, 172 N.C. 192, 89 S.E. 955, 956; Holcomb v. Holcomb, 192 N.C. 504, 135 S.E. 287.

It would be idle to vacate a judgment where there is no real or substantial defense on the merits. Beaufort Lumber Co. v. Cottingham, 173 N.C. 323, 92 S.E. 9; Jones-Onslow Land Co. v. Wooten, supra. "Unless the court can now see reasonably that defendants had a good defense, or that they could make a defense that would affect the judgment, why should it engage in the vain work of setting the judgment aside?" Brown, J., in Glisson v. Glisson, 153 N.C 185, 69 S.E. 55, 56.

"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. Hines, 174 N.C. 283, 93 S.E. 780.

A party who seeks to be relieved from a judgment on the...