McKeel-Richardson Hardware Co. v. Buhman
| Decision Date | 11 September 1912 |
| Parties | McKEEL-RICHARDSON HARDWARE CO. v. BUHMAN et al. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Beaufort County; Webb, Judge.
Action by the McKeel-Richardson Hardware Company against W. C Buhman and another. From an order refusing to set aside a judgment on the ground of excusable neglect, defendants appeal. Affirmed.
On motion to set aside a default judgment on the ground of excusable neglect, it is the court's duty to find the facts but defendants should request such finding.
J. W Little, for appellants.
Small MacLean & McMullan, for appellee.
This is an appeal from the refusal of a motion to set aside a judgment on the ground of excusable neglect. The court held that no excusable neglect had been shown. It is true that it is the duty of the court in such case to find the facts, as to which its finding is conclusive, and that upon such facts the conclusion of law only is reviewable. Norton v. McLaurin, 125 N.C. 185, 34 S.E. 269, and cases there cited. The failure of the judge to find the facts in this case, however, is immaterial; for, taking the affidavits of the appellant as correct, he has shown inexcusable neglect. It appears therefrom that the defendant employed a lawyer residing in New Hanover county to appear in a case pending in Beaufort superior court, which he was not in the habit of attending, and such counsel was not present at the term of the court and did not file answer. Manning v. Railroad, 122 N.C. 825, 28 S.E. 963; Williamson v. Cocke, 124 N.C. 585, 32 S.E. 963. Indeed, the appellant should have asked the judge to find the facts. Albertson v. Terry, 108 N.C. 75, 12 S.E. 892.
The excuse of the counsel is that in New Hanover there was a "custom" that the defendant was allowed 60 days in which to answer. But it is not contradicted that this was not the custom in Beaufort county. Besides, if it had been such custom, it would not justify the defendant in failing to comply with the statutory requirement as to the time in which the answer should be filed, in the absence of a written or admitted agreement to that effect. Brown v. Hale, 93 N.C. 188. The judgment should therefore be affirmed.
It was suggested in this court by the appellant that the judgment should be set aside for irregularity, in that upon the verified complaint a judgment by default and inquiry should have been entered, and not a judgment by...
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