Sikes v. . Weatherly

Merrimon, C. J. after stating the case: The findings of fact by the Court are not reviewable here, and these plainly show that the appellee was the wife of her co-defendant; that she requested the latter to émploy counsel and make defence for her, and she expected he would do so; that he promised that he would ; that he was ignorant and negligent *133 and failed to employ counsel or give the action any attention. The wife might reasonably ask her husband to employ counsel for her and rely upon his promise to do so; it was fit and proper that he should. That he so failed, might well surprise her and make excusable neglect to give attention to the action on her part. It does not appear that she connived at or knew of such neglect. On the contrary, it appears that she intended to make defence and that she might do so successfully. As the facts, in some reasonable aspect of them, constitute surprise and excusable neglect, it was in the discretion of the Court below to allow or deny the motion, and its exercise of discretion in such respect is not reviewable here. The case of Nicholson v. Cox, 83 N. C., 48, is nearly directly in point. This case cites Vick v. Pope, 81 N. C., 22, and distinguishes the latter from it. The other case of Neville v. Pope, 95 N. C , 350, cites and approves Nicholson v. Cox, supra, and points out the ground upon which it was not applicable in that case. That the appellee may not have been a necessary party to the action, and may not have had any interest in the land, is no reason why she should not have the right to set aside the judgment of which she complains for the causes stated. The plaintiff saw fit to make her a party for some reason, and she had the right to make defence, and prevent a judgment against her if she could that might in some way prejudice her.. It seems that the purpose in making her a party was to conclude her as to the land, the subject of the action. The plaintiff deemed the judgment important, else why not consent to abandon the judgment as to her? Why was she made a party ? It does not appear that the Court set aside the judgment as to the defendant husband, as suggested by the brief of plaintiff’s counsel. He was not a party to the motion and not affected by it, sp far as appears. No errror.