Perkins v. Sykes, 747
Decision Date | 02 February 1951 |
Docket Number | No. 747,747 |
Court | North Carolina Supreme Court |
Parties | PERKINS, v. SYKES. |
A. H. Graham, Hillsboro, L. J. Phipps, Chapel Hill, for plaintiff appellee.
J. Grover Lee, R. M. Gantt, Durham, for defendant appellant.
The decisions of this Court uniformly hold that a party, moving in apt time and under the provisions of G.S. § 1-220 to set aside a judgment taken against him, on the ground of surprise or excusable neglect, not only must show surprise or excusable neglect, but also must make it appear that he has a meritorious defense to plaintiff's cause of action. Dunn v. Jones, 195 N.C. 354, 142 S.E. 320; Hooks v. Neighbors, 211 N.C. 382, 190 S.E. 236; Johnson v. Sidbury, 225 N.C. 208, 34 S.E.2d 67; Craver v. Spaugh, 226 N.C. 450, 38 S.E.2d 525; Whitaker v. Raines, 226 N.C. 526, 39 S.E. 266; Van Hanford v. McSwain, 230 N.C. 229, 53 S.E.2d 84, and numerous other cases.
The findings of fact made by the court in respect to the elements so required, surprise or excusable neglect and meritorious defense, when supported by evidence, are conclusive on appeal, and binding on this Court. Craver v. Spaugh, supra. Van Hanford v. McSwain, supra.
But facts found under misapprehension of the law are not binding on this Court and will be set aside, and the cause remanded to the end that the evidence should be considered in its true legal light. McGill v. Town of Lumberton, 215 N.C. 752, 3 S.E..2d 324. See also Van Hanford v. McSwain supra, where decisions to like effect are cited.
Indeed, in Calaway v. Harris, 229 N.C. 117, 47 S.E.2d 796, 797, the principle has been aptly re-stated in this manner: 'Where rulings are made under a misapprehension of the law or the facts, the practice is to vacate such rulings and remand the cause for further proceedings as to justice appertains and the rights of the parties may require', citing McGill v. Lumberton, supra. And this principle is applied in Van Hanford v. McSwain, supra.
While on the present appeal defendant, appellant, bases an assignment of error upon a general exception to the findings of fact on which the challenged judgment rests, 'a shot at the covey', so to speak, it fails to hit any particular fact. Hence it is not well taken, and cannot be considered. See Town of Burnsville v. Boone, 231 N.C. 577, 58 S.E.2d 351.
Moreover, the only assignment of error properly presented for consideration is founded on an exception to the judgment. Such assignment, as recently re-stated in Simmons v. Lee, 230 N.C. 216, 53 S.E.2d 79, and numerous cases there cited, raises only the questions (1) as to whether the facts as found by the judge are sufficient to support the judgment, and (2) as to whether error in matters of law appears upon the face of the record. See also Van Hanford v. McSwain, supra.
In this connection it is apparent, from a reading of the pleadings, the judgment on former trial, and the opinion of the Supreme Court on the former appeal in connection with defendant's motion to set aside the judgment of 16 May 1950, that the facts found by the court in respect to the essential elements, surprise or excusable neglect, and meritorious defense, were made under a misapprehension of the law and the facts.
First, as to the withdrawal of defendant's attorneys: Appropriate treatment of the subject is found in these decisions of this Court: Gosnell v. Hilliard, 205 N.C. 297, 171 S.E. 52, 54, and in Roediger v. Sapos, 217 N.C. 95, 6 S.E.2d 801, 803. In the Gosnell case, Adams, J., writing for the Court, in pertinent part, had this to say: 'An attorney who is retained generally to conduct a legal proceeding enters into an entire contract to follow the proceeding to its termination, and hence cannot abandon the service of his client without sufficient cause and without giving proper notice of his purpose * *. Weeks states the rule as follows: 'An attorney who undertakes the conduct of an action impliedly stipulates to carry it to its termination and is not at liberty to abandon it without reasonable cause and reasonable notice.' * * *
...
To continue reading
Request your trial-
State v. Grundler
...are conclusive on appeal when supported by any competent evidence. Sanders v. Chavis, 243 N.C. 380, 385, 90 S.E.2d 749; Perkins v. Sykes, 233 N.C. 147, 151, 63 S.E.2d 133; Van Hanford v. McSwain, 230 N.C. 229, 233, 53 S.E.2d 84; Craver v. Spaugh, 226 N.C. 450, 452, 38 S.E.2d 525; Carter v. ......
-
Blalock, In re
...705; Weaver v. Morgan, 232 N.C. 642, 61 S.E.2d 916; Gibson v. Central Mfrs.' Mut. Ins. Co., 232 N.C. 712, 62 S.E.2d 320; Perkins v. Sykes, 233 N.C. 147, 63 S.E.2d 133, and numerous other In the light of the record, and facts found by the court, the movants, Mr. and Mrs. Robert K. McGowen, r......
-
Stafford v. Dickison
...only on reasonable notice to the client, allowing him time to employ another lawyer. 5 Am.Jur., Attorneys at Law, § 39; Perkins v. Sykes, 233 N.C. 147, 63 S.E.2d 133; Finch v. Wallberg Dredging Co., 76 Idaho 246, 281 P.2d 136, 48 A.L.R.2d 1150; Canons of Professional Ethics, Canon 44, adopt......
-
Moore v. Deal
...of setting a judgment aside when it would be its duty to enter again the same judgment on motion of the adverse party. Perkins v. Sykes, 233 N.C. 147, 63 S.E.2d 133; Van Hanford v. McSwain, 230 N.C. 229, 53 S.E.2d 84; Stephens v. Childers, 236 N.C. 348, 72 S.E.2d The findings of fact by the......