Marsh v. Griffin

• Decision Date: 23 December 1898
• Citation: 31 S.E. 840,123 N.C. 660
• Parties: MARSH v. GRIFFIN et al.
• Court: North Carolina Supreme Court

31 S.E. 840

123 N.C. 660

MARSH v. GRIFFIN et al.

Supreme Court of North Carolina

December 23, 1898

Appeal from superior court. Union county; Adams, Judge.

Action by J. W. Marsh against A. T. Griffin and others. From an order refusing to set aside a judgment by default, defendants appeal. Remanded.

Adams & Jerome, for appellants.

Shepherd & Busbee, for appellee.

DOUGLAS J.

This is an appeal from the refusal of a motion, under section 274 of the Code, to set aside a judgment by default obtained through the excusable neglect of the defendants. The action was brought to foreclose a mortgage, and incidentally to compel the vendor of the mortgagor to execute to the feme defendant a good and sufficient deed to the land embraced in the mortgage. The plaintiff does not ask for possession of the land, but asked and obtained, among other relief, a personal judgment against the feme defendant for the admitted debt of her husband. The following is taken from the "case" on appeal as settled by the court:

"Judgment was rendered in the above-entitled cause at the August term 1896, of the superior court of Union county, N. C., as will appear from the record herewith sent. At the January term 1897, of the said superior court, the defendants A. T Griffin and wife, after giving notice thereof, moved to set aside the said judgment, and filed certain affidavits in support of said motion. The plaintiff filed certain other affidavits, and the defendants rejoined with additional affidavits. The said motion was continued from term to term and was finally heard at the July special term, A. D. 1898, of the superior court of Union county, N. C., before his honor, Spencer B. Adams, the presiding judge. His honor, after hearing the affidavits of both parties, and the argument of counsel, in the exercise of a sound discretion, refused the said motion, which said refusal was entered upon the docket at the time. After his honor had refused the said motion, the defendants gave notice of appeal, and the usual entries were made, and the amount of appeal bond fixed, all of which will appear from the record herewith sent. The defendants then requested his honor to find the facts upon which he based his refusal, and this his honor agreed to do. It being Saturday of the last day of court, it was agreed by both parties that his honor might find these facts after the expiration of the term, upon statements to be submitted to him by the respective sides. These statements were accordingly submitted, and his honor found the following facts, as being the only facts sufficiently established by the parties, to wit:

"'Findings of Fact.

"'Upon the hearing of the motion made by the defendants A. T. Griffin and wife, E. A. Griffin, to set aside the judgment rendered at the August term, 1896, upon the ground of excusable neglect, the court finds the following facts: (1) That the defendant E. A. Griffin is, and was at the time of the execution of the mortgage sued upon and the rendition of the judgment, a married woman. (2) That the summons in this case was issued on the 30th day of March, 1896, and duly served on the defendants A. T. Griffin and wife, E. A. Griffin, on the 6th of April, 1896; that the complaint was filed on the 30th day of March, 1896; that the superior court of Union county was held on the second Monday before the first Monday in September, 1896, at which term the judgment complained of was rendered, four and a half months after the service of the summons on the defendants; that on the 4th day of December, 1896, after duly advertising according to law, the land described in the complaint, and embraced in the mortgage that was foreclosed, was publicly sold at the court-house door in the town of Monroe, N. C., at which time and place neither of the defendants entered an appearance nor made a protest against said sale; that no counsel was employed, no bond filed, as was required, it being an ejectment suit, and no action was taken by the defendants, or either of them, until the feme defendant filed her affidavit in this cause, on the 7th day of January, 1897. (3) That during the first week of the August term, 1896, of the superior court of Union county, the defendant Marion [Stegall], who resided in the county of Anson, and who was a nominal defendant merely, passed by and stopped at the residence of the other defendants while on his way to Union court; that while at the house of Griffin and wife, the other defendants, Mrs. Griffin said to Stegall that neither she nor her husband were well enough to go to court, and asked him (Stegall) to look after the matter for them; that the said Mrs. Griffin paid Stegall no money to employ counsel, furnished him with no bond nor means to secure one, and the said Stegall made no promise that he would employ counsel or furnish bond; that the said Stegall had no real interest in the suit, and was merely a nominal defendant; that the said Stegall went on to court, found that the case was not calendared for jury trial, and so reported to the other defendants; that he employed no counsel, gave no bond, made no arrangements to do so, all of which the other defendants well knew. (4) That it is the opinion of the court that it was inexcusable negligence on the part of the defendants Griffin and wife to remain still, and make no effort to put in their defense, from the 6th day of April, 1896, the time of the service of the summons upon them, to the 7th day of January, 1897, the time of the filing of their first affidavit, and to content themselves with simply requesting a nominal defendant who accidentally passed their house, while en route to court, to attend to the matter for them, without furnishing him with the means to do so; and this is especially so when the said defendant failed to employ counsel or give bond, as Griffin and wife well knew. And, upon the facts found, as herein before set forth, the court refuses, in the exercise of a sound discretion vested in it by section 274 of the Code, to set aside said judgment.

"'Spencer B. Adams, Judge Presiding.'

"Exceptions.

"To the said judgment and finding of facts the defendants A. T Griffin and E. A. Griffin except, and assign the following exceptions and errors: (1) For that there was no evidence that the action was one of ejectment, in which it was necessary for defendants to file bond, but, on the contrary, the complaint discloses plaintiff's cause of action as one for the foreclosure of a mortgage. (2) For that the judge failed to pass upon all the questions of fact raised by the respective parties, and which were necessary for a correct determination of the question of excusable neglect, in that he failed to pass upon and determine: (a) Whether the plaintiff requested the defendant Stegall to come to Monroe and see plaintiff's attorneys about the matter, and whether plaintiff's counsel informed said Stegall that the case was not for trial at that term, and that, if anything was to be done about the case at said term, he would write to Stegall in time and inform him what was to be done; and whether Stegall told Mrs. E. A. Griffin on his return that nothing was to be done about the case unless they were notified. (b) Whether A. T. Griffin and E. A. Griffin were prevented from attending the return term of court, when the judgment was rendered against them, on account of the sickness of A. T. Griffin and the ill health of E. A. Griffin. (c) Whether, under a rule of said court applicable to all cases brought in said court, 60 days were allowed to plaintiffs to file their complaints and 60 days thereafter allowed to defendants to file answers. (d) Whether the plaintiff has taken a personal judgment against the feme defendant, E. A. Griffin, as a simple inspection of the said judgment will show such personal judgment against her. (3) For that he failed to set aside the personal judgment against the feme defendant, E. A. Griffin, after...