Crumpler v. Hines

• Decision Date: 10 October 1917
• Docket Number: 228.
• Citation: 93 S.E. 780,174 N.C. 283
• Parties: CRUMPLER v. HINES.
• Court: North Carolina Supreme Court

93 S.E. 780

174 N.C. 283

CRUMPLER v. HINES.

No. 228.

Supreme Court of North Carolina

October 10, 1917

Appeal from Superior Court, Sampson County; Lyon, Judge.

Action by E. A. Crumpler against H. J. Hines, administrator. There was default judgment for plaintiff, and, defendant's motion to set the same aside on the ground of excusable neglect being denied, he appeals. Affirmed.

Motion to set aside default held not to show meritorious defense.

This is a motion to set aside a judgment by default on the ground of excusable neglect. The action was commenced on January 23 1912. The complaint was filed at the February term, 1914, and the judgment, which the defendant asks to have set aside was rendered by default for the want of an answer, at August term, 1916, and this motion was made within one year thereafter. The complaint alleges that on the 4th day of October, 1909, John E. Fowler bought a tract of land at public sale at the price of $385; that the plaintiff, at the request of Fowler, advanced the money to pay the purchase price, the said Fowler agreeing to repay said sum and to give to the plaintiff one-half of the profits for which the land should be sold, that on the 22d of December, 1909, the said Fowler sold said land to F. R. Cooper, the intestate of the defendant, for the sum of $600, and that the said Cooper then agreed that he would pay to the plaintiff the original purchase price and one half the profits on the sale to him and would credit said Fowler with the other half of said profits on an open account held by the said Cooper against the said Fowler; that the said Cooper has never paid any part of said amount; and that thereafter he sold said land for the sum of $800. No answer was filed, and the facts above recited are not denied in the affidavit filed by the defendant in support of this motion, nor does he say that he has a meritorious defense. Both parties filed affidavits before his honor, and after consideration thereof judgment was entered denying the motion of the defendant upon the ground that although excusable neglect had been shown, it had not been shown that there was a meritorious defense, and the defendant excepted and appealed.

Butler & Herring, of Clinton, for appellant.

Henry E. Faison, of Clinton, I. C. Wright, of Wilmington, and B. H. Crumpler, of Clinton, for appellee.

ALLEN J.

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. If he is a plaintiff, he must allege facts constituting a cause of action, and if a defendant, facts which will be a defense. It is not required that these facts be established conclusively on the hearing of the motion, but they must be alleged in good faith, and must, if true, in the one case show a cause of action, and in the other a defense. In other words, the facts alleged must make out a prima facie cause of action or defense, the ultimate and final determination of these being left to the proper tribunal, if the judgment is set aside. Mauney v. Gidney, 88 N.C. 202; ...