98 S.E. 706 | N.C. | 1919
This was a motion by J. S. Wooten, one of the defendants, to set aside a judgment by default final rendered at October Term, 1918, on the allegation that the judgment was irregular, and also on the ground of excusable neglect. There was no irregularity in taking the judgment, and upon the facts found the neglect of the defendant was not excusable.
This action was begun by the plaintiff alleging that it was in possession and asking to set aside the claim of the defendant as a cloud upon title. The summons issued in June, 1913, returnable to Onslow. The complaint, duly verified, was filed at April Term, 1918. There was no answer filed at that term and the July Term of the court was not held. At October Term, 1918, no answer having been filed, the plaintiff took judgment by default final. The judge finds that the defendant originally employed T. C. Wooten counsel, residing at Kinston, to defend him; that subsequently he dispensed with the services of said counsel, though it does not appear when, and employed J. Frank Wooten counsel, resident in Jacksonville, to attend to the case; that on 15 August, 1918, said J. Frank Wooten entered the army, but he had not entered an appearance in the action and had filed no answer. It does not appear that the defendant had paid any attention to the cause at all, though the complaint had been on file six months and his counsel two months previously had left the county to enter the army, which must have been a matter well known to him. This was not such conduct as a man of ordinary prudence would have given to his important business matters. *264
In Roberts v. Allman,
Unless the judge finds that there was excusable neglect, and this finding is correct as a matter of law, he is not authorized to set aside the judgment. The facts found by him are conclusive if there is any evidence on which to base such finding of fact. Whether the facts found constitute excusable neglect or not is a matter of law and reviewable upon appeal.
But even when the facts found justify a conclusion that the neglect was excusable, the court cannot set aside the judgment unless there is a meritorious defense. Norton v. McLaurin,
In the still more recent case of Lumber Co. v. Cottingham,
In Crumpler v. Hines,
The judge further finds as facts that the plaintiff's and defendants' chain of title both cover the land in controversy; that defendants' chain of title is a grant, 10 March, 1898, mesne conveyances to T. C. Wooten, who on 17 February, 1911, conveyed to the defendants by deed which *265 was recorded 27 February, 1911. Also that the "plaintiff's claim is under grant issued about 1795, which covers land in controversy; also under tax deeds, and connected with same by unbroken chain of title." And, also, that it acquired the T. C. Wooten title (under which defendants claim) by lien which attached prior to the said Wooten's deed to defendants, by virtue of a regular sale under execution on a judgment against T. C. Wooten docketed in Onslow on 10 February, 1911, eleven days before the deed from said Wooten to the defendant was registered and seven days before it purports to have been (251) executed.
There is not only no finding, or evidence set out in any affidavit to justify such finding, of any actual possession by defendants or those under whom they claim; but even if they had been in actual possession from the date of the grant it would have been of no avail as the grant was issued after 1893, to wit, 10 March, 1898, Rev. 1699, provides: "Every grant of land made since 6 March, 1893, in pursuance of the statutes regulating entries and grants, shall, if such land or any portion thereof has been heretofore granted by this State, so far as relates to any such land heretofore granted, be absolutely void for all purposes whatsoever; shall confer no rights whatever upon the grantee or grantees therein or those claiming under such grantee or grantees, and shall in no case and under no circumstances constitute any color of title to any person whomsoever." The statute was sustained in Weaver v. Love,
Upon the facts found the defendant has not shown any meritorious defense and the judge has not so found. The judgment below must be
Reversed.
Cited: Shepherd v. Shepherd,