Stephens v. Childers
| Decision Date | 29 October 1952 |
| Docket Number | No. 312,312 |
| Citation | 236 N.C. 348,72 S.E.2d 849 |
| Court | North Carolina Supreme Court |
| Parties | STEPHENS et al. v. CHILDERS. |
C. David Swift, Valdese, for plaintiff, appellee.
Mull, Patton & Craven, Morganton, for defendant, appellant.
It is established by the decisions of this Court that a party moving under the provisions of G.S. 1-220 to set aside a judgment rendered against him on the ground of excusable neglect not only must show excusable neglect but also must make it appear that he has a meritorious defense to the plaintiff's cause of action. 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; Whitaker v. Raines, 226 N.C. 526, 39 S.E.2d 266; Johnson v. Sidbury, 225 N.C. 208, 34 S.E.2d 67; Parnell v. Ivey, 213 N.C. 644, 197 S.E. 128; Dunn v. Jones, 195 N.C. 354, 142 S.E. 320.
The defendant urges that the court erred in finding (1) 'that the record discloses no evidence or testimony that would warrant any court in finding excusable neglect,' and (2) in failing to find 'that the negligence of Iowa National Mutual Insurance Company constituted excusable neglect on the part of the defendant.'
Here the defendant takes the position that the court made no specific finding as to neglect, whether excusable or not, of the defendant, and urges that the court in effect was saying that on the facts presented it had no discretion to set aside the judgments. These contentions are untenable. Negligence of the insurance carrier was conceded. The mooted question was whether its negligence was imputed to the defendant. The clear import of the judgment is that the court found the negligence of the insurance carrier inexcusable and that it was imputed to the defendant. These findings are sustained by the record. All the evidence tends to show that the insurance company assumed the responsibility of defending the action for the defendant with his full knowledge and consent, under circumstances which constituted the insurance company the agent of the defendant for the purpose of employing counsel and arranging for the defense of the action. On this record the negligence of the insurance company was inexcusable and clearly imputable to the defendant.
The rule is established with us that ordinarily the inexcusable neglect of a responsible agent will be imputed to the principal in a proceeding to set aside a judgment by default. Stallings v. Spruill, 176 N.C. 121, 96 S.E. 890. See also Kerr v. North...
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Moore v. Deal
...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 849. The findings of fact by the trial court upon the hearing of a motion to set aside a judgment under G.S. § 1-220 are conclu......
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Griffey v. Rajan, 86-1917
...in defending a lawsuit to its insured. See, e.g., Stevens v. Gulf Oil Corp. (1971), 108 R.I. 209, 274 A.2d 163; Stephens v. Childers (1952), 236 N.C. 348, 72 S.E.2d 849; Leslie v. Spencer (1935), 170 Okl. 642, 42 P.2d 119; Chmielewski v. Marich (1954), 2 Ill.2d 568, 119 N.E.2d 247, 42 A.L.R......
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Wilson v. Chandler
...by the court that his neglect was excusable and that he has a meritorious defense to plaintiffs' cause of action. Stephens v. Childers, 236 N.C. 348, 72 S.E. 2d 849; 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; Whitaker v. Raines, 226 N.......
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Truhe v. Grimes, 93-1221
...R.I. 209, 274 A.2d 163 (1963); Chielewski v. Marich, 2 Ill.2d 568, 119 N.E.2d 247 (1954); Griffey v. Rajan, supra; Stephens v. Childers, 236 N.C. 348, 72 S.E.2d 849 (1952); Leslie v. Spencer, 170 Okla. 642, 42 P.2d 119 (1935); Ward v. Cook, supra. Furthermore, though we have not directly de......