Geer v. . Reams

Ashe, J. Whether the defendant had a meritorious defence to the action, it seems, turned upon the point whether he was co-surety with the other sureties to the note; and the fact was found by His Honor that he was a co-surety, from which we conclude that His Honor was of the opinion the defendant did not have a meritorious defence; but as the affidavit of the defendant did set forth facts making out a case of excusable negligence under section 133 of the Code, His Honor, in the exercise of his legal discretion, set aside the judgment in part. The defendant, however, insists, in that there was error: That if it was a case for the relief sought, it should have'been set-aside in toto. But we do not concur in that position. The court was invested with a full legal discretion over the matter by section 133, and had the right to annul or modify the judgment. In the case of the Bank of Statesville v. Foote, 77 N. C., 131, which was a case similar to this, and the defence which the defendant sought to set up was usury, the court below held that *200 that was not a meritorious defence, yet reformed the judgment by striking from it all the interest which was alleged to be usurious, and the action of the court was sustained by this court. To the same effect is Nicholson v. Cox, 83 N. C., 48. Upon the facts of the case as found by His Honor, and the authorities cited, we cannot say there was any abuse of the legal discretion of the court below, and the judgment must be affirmed. No error. Affirmed.