Gunter v. . Dowdy

ScheNCk, J. Tbe question posed by tbis appeal is: Was tbe clerk authorized to vacate bis former judgment by default adjudging tbe plaintiff to be tbe owner of tbe land described in tbe complaint, and was tbe judge presiding authorized, on appeal from tbe clerk, to vacate said judgment by default? We are of tbe opinion, and so bold, that both tbe clerk and tbe judge presiding were so authorized. Tbe answer to tbe question posed lies in G. S., 1-220 (formerly C. S., 600), which reads: “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 bis mistake, inadvertence, surprise, or excusable neglect, and may supply an omission in any proceeding. Tbe clerk may bear and pass upon motions to set aside judgments rendered by him, whether for irregularity or under tbis section, and an appeal from bis order on such motion shall lie to tbe judge at tbe next term, who shall bear and pass upon such motion de novo." Tbe judge in bis judgment found as facts that the appeal was taken from tbe order of tbe clerk vacating bis former order by default; that tbe plaintiff caused summons to issue against tbe defendants, which summons with copies of tbe complaint were duly served on tbe defendants; that judgment by default, in tbe absence of answer, was entered by tbe clerk adjudging plaintiffs to be tbe owner of tbe land described in tbe complaint; that defendants in apt time employed W. P. Horton, an attorney, to file answer for them and do such other things as were deemed necessary for their defense, and made him aware of their defense to tbe action, but owing to tbe illness and death of said attorney’s wife and tbe prolonged illness of tbe attorney himself no answer was filed; that tbe defendants have, prima facie, a good title to tbe land involved; that tbe clerk entered order vacating bis former order by default adjudging plaintiff to be tbe owner of tbe land involved; that tbe failure of defendants’ attorney, W. P. Horton, to file answer, under tbe circumstances of tbis case, constituted excusable neglect. Since there was supporting evidence of each of tbe findings of fact of tbe judge such findings are conclusive. Lumber Co. v. Cottingham, 173 N. C., 323, 92 S. E., 9; Weil v. Woodard, 104 N. C., 94, 10 S. E., 129; Gaylord v. Berry, 169 N. C., 733, 86 S. E., 623; Manning v. R. R., 122 N. C., 824, 28 S. E., *524 963; and Stith v. Jones, 119 N. C., 428, 25 S. E., 1022. Since tbe failure to file an answer was due to tbe excusable neglect of tbe attorney employed in apt time by tbe defendants, and since tbe defendants made sucb attorney aware of tbeir defense to tbe action, any failure or neglect of tbe attorney to file tbe answer could not be attributable to tbe defendants. Schiele v. Ins. Co., 171 N. C., 426, 88 S. E., 764; English v. English, 87 N. C., 497; Norton v. McLaurin, 125 N. C., 185, 34 S. E., 269; Mann v. Hall, 163 N. C., 50, 79 S. E., 437. We bold tbat tbe judge presiding was authorized to enter tbe judgment appealed from, and tbat bis conclusion tbat tbe failure to file answer was due to excusable neglect of defendants’ attorney, and tbat sucb neglect was in nowise attributable to tbe defendants themselves is sustained by tbe facts found, which findings were supported by competent evidence, and for these reasons tbe judgment of tbe judge presiding should be affirmed. It is so ordered. Affirmed.