Johnson v. Sidbury

• Court: North Carolina Supreme Court
• Writing for the Court: DEVIN
• Citation: Johnson v. Sidbury, 225 N.C. 208, 34 S.E.2d 67 (N.C. 1945)
• Decision Date: 23 May 1945
• Docket Number: No. 596.,596.
• Parties: JOHNSON et al. v. SIDBURY.

34 S.E.2d 67

225 N.C. 208

JOHNSON et al.

v.SIDBURY.

No. 596.

Supreme Court of North Carolina.

May 23, 1945.

Appeal from Superior Court, New Hanover County; Jeff D. Johnson, Special Judge.

Action by Lula Johnson, administratrix of the estate of George Johnson, deceased, and others against J. Buren Sidbury, administrator of the estate of V. Sidbury, deceased, to recover damages for injury to real property. From a judgment granting defendant's motion to set aside a default judgment on the ground of excusable neglect, plaintiffs appeal.

Reversed.

Motion to set aside default judgment on ground of excusable neglect. Motion allowed, and plaintiffs appealed.

Rodgers & Rodgers and J. H. Ferguson, all of Wilmington, for plaintiffs.

Carr, James & Carr and Clayton C. Holmes, all of Wilmington, for defendant.

DEVIN, Justice.

The appeal in this case presents the question whether the defendant offered sufficient evidence of excusable neglect to warrant setting aside a judgment by default and inquiry heretofore rendered against him for want of an answer. G.S. § 1-220.

It appears that the action was properly instituted in the Superior Court of New Hanover County to recover damages for injury to real property, and that summons and verified complaint were duly served on the defendant June 13, 1944. G.S. § 1-89; G.S. § 1-121. No answer or other plea having been filed by defendant, on July 14, 1944, judgment by default was rendered by the clerk, with order for inquiry as to amount of damages sustained by plaintiffs. G.S. §§ 1-209, 1-212. October 14, 1944, defendant moved before the clerk to set aside the judgment, under G.S. § 1-220, on the ground of excusable neglect. This motion was denied and defendant appealed to the judge of the superior court. On such appeal the judge held the judgment was taken through mistake, inadvertence or excusable neglect and that defendant had shown a meritorious defense, and ordered that the judgment be set aside and the defendant allow to plead. Plaintiffs' appeal brings this ruling here for review.

The findings of fact upon which the order of the trial judge was based were substantially these: In 1941 a suit had been instituted by plaintiff's intestate George Johnson against V. Sidbury, defendant's intestate, and another, for a cause of action similar to that now sued on. At May Term, 1944, a voluntary non-suit had been entered in that action, and the defendant was so advised. It was found by the court that when summons and complaint in the present action were served on defendant June 13, 1944, through mistake and inadvertence, because of his knowledge of the former suit and the similarity of the papers, he concluded these were some papers in connection with the disposal of that suit, and did not need attention. The court also found the following facts: "But the court further finds as a fact that at the time said summons and complaint were served upon the defendant, J. Buren Sidbury, administrator of the estate of V. Sidbury, deceased, on June 13, 1944, he was a physician practicing in Wilmington and Eastern North Carolina; that he had a very large practice; that at that time and for some time prior thereto the City of Wilmington and the surrounding communities because of war activities had had a great influx of population, while the practicing physicians had decreased about one-third in number, thus throwing a great strain upon the practicing physicians in order to give the necessary attention to the sick and afflicted, and that the defendant, J. Buren Sidbury, because of the demands upon him as a physician was under great strain and unable to give the attention to personal affairs not involving the treatment of the sick and afflicted that he would have been able to give under normal conditions; that the defendant, J. Buren Sidbury, was at said time operating the Babies Hospital at Wrightsville Sound, which was filled to capacity, and was also treating patients at the James Walker Memorial Hospital, and in addition thereto was treating patients at his private offices."

It thus appears that notwithstanding the summons and complaint were duly served on him by an officer, and that copies of these papers were left with him, the...