Hooks v. . Neighbors

PeR CmtiAM. We do not think any of the exceptions and assignments of error made by Maude Evans can be sustained. *384 This was a civil action brought by plaintiffs against defendants. Maude Evans was served with summons on 8 January, 1929. Petition was duly filed. The prayer was: “That some suitable, competent, and fit person be appointed trustee to fill the vacancy created by the death of the said E. G. Taitón, and that upon said appointment, judgment be rendered requiring E. Y. Neighbors, executor of the estate of the said E. G. Taitón, to pay over to such trustee the sum of $3,000 in cash, to be held by such trustee for the purposes and benefits of the said trust.” The defendants, including Maude Evans, answered, practically admitting the allegations of the petition, and pray: “(1) That the prayer of the petitioners be denied or postponed until the estate of E. G. Taitón shall have been settled; (2) That the question of the interest on these funds which must first be separated from the assets of the estate of E. G. Taitón and then disposed of or invested under the orders of this court shall be postponed until the estate of E. G. Taitón is settled.” On 11 February, 1929, the clerk of the Superior Court rendered the following judgment: “The above entitled cause coming on to be heard before the undersigned clerk of the Superior Court of Johnston County, upon the petition herein for the appointment of a trustee to take over a trust fund of $3,000 created by the late Rhoda Pittman under the last will and testament; and it appearing to the court upon the hearing that E. G. Taitón, deceased, was trustee for said fund under the will of Rhoda Pittman, deceased, and that the will of the said Rhoda Pittman contained no provision for the appointment of a successor to the said E. G. Taitón, and the court finding as a fact that upon the death of said E. G. Taitón said office of trustee became and is vacant; it is now therefore ordered, adjudged, and decreed that S. II. Hooks, father and general guardian of the infant petitioners named herein be and he is hereby appointed trustee to fill the vacancy created by the death of the said E. G. Taitón, the court finding that said S. H. Hooks to be a suitable, competent, and fit person to act as trustee herein. It is the further judgment of the court that the said S. H. Hooks, as trustee, give bond in the sum of $6,000, with such surety as may be acceptable to the court before any funds shall come into his hands; and it is further ordered, adjudged, and decreed that E. Y. Neighbors, executor of the estate of E. G. Taitón, deceased, out of the first monies coming into his hands, pay over to the said S. H. Hooks, trustee, the sum of $3,000 to be held by such trustee for the purposes and benefits of the trust created by the last will and testament of Rhoda Pittman, deceased. This 11 Eebruary, 1929. II. Y. Rose, clerk Superior Court.” The defendants appealed to the Superior Court. On 16 January, 1934 (January Term), the judgment of Judge Clayton Moore was as follows: “The above cause coming on to be heard *385 before the undersigned judge of the Superior Court presiding at the January^Term, 1934, upon the appeal entered by the defendant to the judgment' of the clerk of the Superior Court in February, 1929; and it appearing to the court that the defendant has abandoned the appeal, it is now therefore ordered, adjudged, and decreed that the judgment of the clerk of the Superior Court in this cause as of .. . February, 1929, be and the same is hereby, in all respects, approved and confirmed. This 16 January, 1934. Clayton Mooee, Special Judge Presiding.” On 6 September, 1936, Maude Evans filed an affidavit setting forth certain facts and prayed that the judgment be set aside, and also “That this affiant specifically says that the estate of E. G-. Taitón is not indebted to anyone, making necessary the sale of this affiant’s land, and this affiant has a meritorious defense to this cause of action.” We take it that the motion to set aside the judgment is made under 3ST. C. Code, 1935 (Michie), sec. 600, which is, in part, as follows: “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, and may supply an omission in any proceeding,” etc. 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 reasonably pass upon the question whether another trial, if granted, would result advantageously for the defendant. Farmers, etc., Bank v. Duke, 187 N. C., 386; Hill v. Huffines Hotel Co., 188 N. C., 586; Fellos v. Allen, 202 N. C., 375. A judgment may be set aside under this section if the moving party can show excusable neglect and that he has a meritorious defense. Dunn v. Jones, 195 N. C., 354, 356; Henderson Chevrolet Co. v. Ingle, 202 N. C., 158; Bowie v. Tucker, 206 N. C., 56, 59. In the affidavit of Maude Evans there are no facts set forth showing a meritorious defense. To say the estate is not indebted and she has a meritorious defense is not sufficient. She must give the facts so that the court may see what her defense is. The court below, in the judgment, did not find that she had a meritorious defense. The findings of facts by the court below were supported by the evidence appearing in the record. The statement of the ease on appeal presents clearly the controversy. Maude Evans was served with summons on 8 January, 1929, and made affidavit to set aside the judgment of January Term, 1934, on 6 September, 1936, years afterwards. For the reasons given, the judgment of the court below is Affirmed.