Moore v. W O O W, Inc.
Decision Date | 23 September 1959 |
Docket Number | No. 26,26 |
Citation | 110 S.E.2d 311,250 N.C. 695 |
Court | North Carolina Supreme Court |
Parties | William W. MOORE v. WOOW, INC. |
Wilkinson & Ward, Washington, for plaintiff, appellant.
Rodman & Rodman and S. M. Blount, Washington, for defendant, appellee.
The question for decision is: Did Judge Paul within one year from the date of entry of the judgment by default final, on motion of defendant, have the power and authority to set it aside by virtue of G.S. § 1-220 upon findings of fact and conclusions of law that the judgment by default final was taken against defendant through its excusable neglect, and that it had a meritorious defense to the action, Judge Hall several months prior thereto having denied a similar motion for the reason that while the defendant had shown that the judgment by default final was taken against it by its excusable neglect, it had not shown it had a meritorious defense, when the evidence upon which Judge Paul based its findings of fact and conclusions of law that defendant had a meritorious defense to the action was not available to defendant at the time of the hearing before Judge Hall?
In Cox v. Cox, 221 N.C. 19, 18 S.E.2d 713, 714, plaintiff at the September Term 1938 of Nash County Superior Court obtained a divorce a ainculo from defendant on the ground of two-year separation. On 3 July 1939 defendant filed a motion to set the decree aside alleging that at the time the action was instituted and service of summons made upon defendant she was insane, a fact well known to plaintiff, and that she was not represented by a next friend or guardian ad litem, as required by law. The motion was heard by Judge Bone in chambers in Nashville on 26 October 1939, and he dismissed the motion because of failure to allege that movant had a meritorious defense. Whereupon, a next friend was appointed to represent defendant in further proceedings, a new motion was filed to set aside the decree on similar grounds, and the new motion alleged facts which, if true, would constitute a meritorious defense. The new motion was heard by Harris, J., at September 1941 Term of Nash County Superior Court. In addition to resisting the motion on the merits, plaintiff pleaded that the matter in controversy on the motion had been judicially determined by the order of Judge Bone, and had become res judicata. After finding certain facts relative to the alleged insanity of defendant at the time the suit was instituted, and relating to the merits of the defense, Judge Harris rendered judgment setting aside the decree of divorce, and plaintiff appealed. This Court affirmed Judge Harris' judgment, and said:
This is said in 30A Am.Jur., Judgments, § 360:
In 49 C.J.S. Judgments § 306, p. 559, it is written:
In Olson v. Advance Rumely Thresher Co., 43 S.D. 90, 178 N.W. 141, 142, the Court said: In this case the Court held that the order denying the motion to vacate the default judgment was...
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