Gaylord v. . Berry

Walkee, J., after stating tbe case: We do not think tbe findings of fact are sufficient for us to decide tbis matter without tbe danger of doing injustice to one or tbe other of tbe .parties. Tbe court refers to tbe affidavits and finds from them, but without stating tbe particular facts upon which be bases bis opinion in law, tbat defendant has no meritorious defense. ILe seems to have passed upon tbe truth or falsity of tbe defense set up, and not to have treated it as presenting a prima facie case, which be should have done. Where a party, in good faith, shows facts which raise an issue sufficient to defeat bis adversary, if it be found in bis favor, it is for tbe jury to try tbe issue and not for tbe judge, who merely finds whether on their face tbe facts show a good defense in law; otherwise, tbe defendant, tbougb be establish ever so clear a case of excusable neglect entitling him to have tbe judgment set aside, would be deprived of tbe right of trial by tbe jury of tbe issue thus raised. As tbe court has referred to what is stated in tbe affidavits as tbe ground of the ruling tbat there is no meritorious defense, we have examined them and find tbat they do state such a defense, if they correctly aver tbe facts, and especially when considered in connection with other circumstances. Tbe court should have stated what tbe defense was, or tbe facts in regard to it, so tbat tbis Court could pass upon its legal merit. Marsh v. Griffin, 123 N. C., 660; Oldham v. Sneed, 80 N. C., 15; Smith v. Hahn, ibid., 240; Bryant v. Fisher, 85 N. C., 69; Winborne v. Johnson, 95 N. C., 46; Clark’s Code (3 Ed.), p. 310. We cannot review or reverse tbe judge’s findings of fact on a motion of tbis kind, but we can revise bis ruling upon tbe law, if erroneous, and what is excusable neglect is a question of law. Powell v. Weith, 68 N. C., 342. If tbis defendant retained a reputable attorney, who regularly practiced in .Brunswick Superior Court, paid him $35 as bis fee; ap *736 prised bim of tbe facts, and tbe attorney promised to attend court and look after tbe defendant’s interests, all of wbicb be says was done, and tbe attorney failed to file an answer, and tbe defendant was not in fault bimself, but acted witb ordinary prudence, tbis would constitute excusable neglect. Francks v. Sutton, 86 N. C., 78; English v. English, 87 N. C., 497; Wiley v. Logan, 94 N. C., 564. Tbe standard of care required of a defendant is tbat wbicb an ordinarily prudent man bestows upon his important business. Roberts v. Allman, 106 N. C., 391. In finding whether such care has been exercised tbe Court will consider, of course, all tbe facts and circumstances of tbe particular case. Tbe attorney was not examined, nor was J. R. Green, tbe creditor, as to tbe allegation of tbe defendant tbat tbe debt bad been satisfied. We do not, though, now decide upon tbe merits, as tbe findings of fact are too meager for tbat purpose. It was stated here and not denied, tbat tbe attorney is insolvent, and therefore defendant has no available remedy against bim for failing in bis duty. It may be tbat all tbe matters will be, hereafter, more fully explained and more clearly stated, and some missing facts supplied. All we now do is to remand tbe case, witb directions tbat tbe court below set aside tbe findings and make new and fuller findings of fact, witb leave to file additional affidavits, if tbe parties are so advised. We attach no legal importance to what was done at "Wbiteville, N. C. It has no semblance of a judicial' proceeding, but seems to have been merely an informal request, addressed to tbe judge, to set aside. There was no writing, and no record of it was made. It is difficult to understand whether the court refused tbe motion upon tbe ground tbat there bad been a previous adjudication of it, or tbat there was no excusable neglect, or because tbe defense set up was not meritorious. We will not consider tbe merits, though, as injustice may be done if we should do so without all tbe essential facts being before us. Tbe questions as to what constitutes excusable neglect and what is a meritorious defense are discussed in Sircey v. Rees’ Sons, 155 N. C., 296. Remanded.