Russell v. Edney

• Decision Date: 05 March 1947
• Docket Number: No. 161.,161.
• Citation: 227 N.C. 203,41 S.E.2d 585
• Court: North Carolina Supreme Court
• Parties: RUSSELL . v. EDNEY.

41 S.E.2d 585

227 N.C. 203

RUSSELL .

v.EDNEY.

No. 161.

Supreme Court of North Carolina.

March 5, 1947.

Appeal from Superior Court, Polk County; Allen H. Gwyn, Judge.

Action by H. W. Russell, as ancillary administrator in the state of North Carolina of Linda Gale Eubanks, deceased, against John H. Edney. From an order setting aside a judgment theretofore ren dered in favor of plaintiff by default and inquiry, plaintiff appeals. Order affirmed.

Carlisle, Brown & Carlisle, of Spartanburg, S. C, and M. R. McCown, of Tryon, for plaintiff appellant.

M. M. Redden, of Hendersonville, for defendant appellee.

DEVIN, Justice.

This case comes to us upon the plaintiff's appeal from an order of the Judge below setting aside a judgment in the cause therefore rendered in favor of plaintiff by default and inquiry. G.S. § 1-212.

The ruling appealed from was based upon the finding by the court that the defendant was a non-resident of this state, that he was not personally served with process, that he had no notice of the institution and pendency of the action, and that he had a meritorious defense. The motion to vacate the judgment was filed within a few days after its rendition and immediately upon defendant's learning of the action.

The only exception noted by plaintiff appellant was to the finding that defendant did not have notice of the action, and that his neglect, if any, was excusable. Plaintiff's contention that the defendant had notice of the pendency of the action in Polk County, North Carolina, was based upon a letter written by plaintiff's counsel, residing in Spartanburg, South Carolina, to Mr. C. T. Graydon, an attorney residing in Columbia, South Carolina, who had appeared for Edney in another action for the same cause in South Carolina, in which it was stated, "An attachment proceeding has been begun against Mr. Edney in North Carolina upon the same cause of action." It was not stated when or in what county in North Carolina the action had been instituted, and no other communication or information was given. Mr. Graydon replied to plaintiff's counsel that he would not represent Edney outside the state of South Carolina. He informed Edney of the letter he had received and advised him if any papers were served on him to bring them to him and he would tell him what to do. No papers were served on defendant or no-tice of any kind given him. Defendant "is practically illiterate and cannot read except plain print." It seems, however, that Edney who owned some...