Sykes v. Weatherly

• Decision Date: 16 February 1892
• Citation: 14 S.E. 511,110 N.C. 131
• Parties: SYKES v. WEATHERLY et ux.
• Court: North Carolina Supreme Court

14 S.E. 511

110 N.C. 131

SYKES v. WEATHERLY et ux.

Supreme Court of North Carolina

February 16, 1892

Appeal from superior court, Tyrrell county; HENRY R. BRYAN, Judge.

Action by Jesse L. Sykes against Jacob and Alethia Weatherly. Judgment by default for plaintiff. From an order setting aside the judgment as to Alethia Weatherly, plaintiff appeals. Affirmed.

The other facts fully appear in the following statement by MERRIMON, C.J.:

The plaintiff brought this action against the defendants therein (husband and wife) to the spring term, 1890, of the superior court of the county of Tyrrell, and at the fall term of that court, next thereafter, obtained judgment by default final for want of an answer. At the next succeeding term the feme defendant moved to set aside this judgment upon the ground of surprise and excusable neglect, as allowed by the statute. Code, § 274. The court heard and disposed of the motion upon affidavits of the parties, finding the facts and giving judgment as follows: "It appearing to the court (1) that on the ___ day of ___, 188-, the defendant Jacob Weatherly without the signature or consent of his wife, executed a certain mortgage to the above plaintiff upon the tract of land mentioned therein, which was worth between three and five hundred dollars, and was all the land her husband owned at that time, and he was greatly embarrassed with debt at that time; (2) that the land was sold under the said mortgage without the knowledge or consent of his wife, Alethia Weatherly, for the sum of fifty dollars, (the mortgage debt being $41,) was purchased by J. C. Meekins, Sr., who held second mortgage for $25, and who conveyed the same to Jesse L. Sykes, the above plaintiff, who paid said Meekins the amount of his debt; (3) that Jesse L. Sykes then brought suit to the spring term, 1890, against the defendant Jacob Weatherly and wife for possession of said land at fall term 1890, and obtained judgment by default final against the defendants for said land; (4) that the defendant's husband is an ignorant man, and after the summons were served upon him and his wife in the above cause his wife talked with him about the case, and he promised her to employ counsel and because of such reliance she took no steps in the matter personally; (5) that her husband, through his ignorance and negligence, failed to give this case any attention or to employ counsel, and judgment by default final was taken against the defendants; (6) that the sum of fifty dollars is all that is due upon the mortgage debt aforesaid: Now, upon the motion of J. H. Blount, attorney for Alethia Weatherly it is considered by the court that the judgment heretofore rendered in this case be and the same is set aside and revoked." From this judgment the plaintiff appealed to this court, assigning as error that the facts do not show surprise or excusable neglect, and that the appellee wife was not a necessary party to the action,...