Parnell Et Ux v. Ivey Et Ux, 669.

• Decision Date: 25 May 1938
• Docket Number: No. 669.,669.
• Citation: 197 S.E. 128,213 N.C. 644
• Court: North Carolina Supreme Court
• Parties: PARNELL et ux. v. IVEY et ux.

213 N.C. 644

197 S.E. 128

PARNELL et ux.

v.IVEY et ux.

No. 669.

Supreme Court of North Carolina.

May 25, 1938.

Appeal from Superior Court, Cumberland County; Luther Hamilton, Special Judge.

Action by H. P. Parnell and wife against H. C. Ivey and wife for damages for the breach of a covenant against liens and encumbrances contained in a warranty deed. Judgment was rendered on a verdict for plaintiffs, and, from an order vacating the judgment, plaintiffs appeal.

Error.

The issues submitted to the jury indicate the controversy. These issues and the answers thereto were as follows:

"1. Did the defendants, on or about the 23rd day of November, 1927, convey, by deed to the plaintiffs, in fee simple, for a valuable consideration, a tract of land and farm in Cumberland County, containing SO acres, more or less? Ans: Yes.

"2. Did the defendants, in said deed, covenant and warrant to the plaintiffs that said lands and farm were free and clear from all liens and encumbrances? Ans: Yes.

"3. Were said lands and farm at the time of the execution and delivery of said deed free and clear from all liens and encumbrances? Ans: No.

"4. If not, what amount of valid liens existed thereon at the date of said delivery of said deed on November 23, 1927? Ans: $850.00.

"5. What amount of money have the plaintiffs been compelled to pay said life holder for the satisfaction of said lien and redemption of said lands? Ans: $301.20.

"6. What amount of damages, if any, are the plaintiffs entitled to recover of the defendants in this action? Ans.: $301.20 and interest from December 31st, 1934."

The Court below rendered judgment for plaintiffs on the verdict. The defendants made a motion, under N.C.Code, 1935 (Michie), Sec. 600, to set aside the judgment. The Court below rendered the following findings: "The Court finds as a fact that defendants' counsel was not furnished copy of court calendar, did not know court was in session, though his name appeared on the calendar as attorney of record, and is excusable under attending circumstances, and that defendants have a meritorious defense to the pending action."

The plaintiffs excepted, assigned error to the above findings and also made other exceptions and assignments of error and appealed to the Supreme Court.

R. L. Godwin, of Dunn, for appellants.

L. L. Levinson and J. R. Barefoot, both of Benson, for appellees.

CLARKSON, Justice.

Section 600, supra, is, in part: "The judge shall, upon such terms as may be just, at any time within one year after notice thereof, relieve a party from a judgment, order, verdict or other proceeding taken against him through his mistake, inadvertence, surprise or excusable neglect, " etc.

In Hooks v. Neighbors, 211 N.C. 382, 385, 190 S.E. 236, 238, is the following: "In order to set aside a judgment for mistake, surprise, or excusable neglect, there must be a showing of a meritorious defense so that the courts can...