174 S.E. 301 | N.C. | 1934
The plaintiffs made several exceptions and assignments of error and appealed to the Supreme Court.
The question presented, as stated by plaintiffs; has the court the power to allow a defendant to plead after service of summons in the manner provided by law for nonresidents: unless the court finds facts showing good cause and a meritorious defense upon proper and competent evidence? On the first proposition, we think on the record, the facts showed good cause and the clerk so found. On the second proposition, we think, on the record there must be set forth facts showing prima facie a valid defense which was shown in this case, and the clerk so found that the defendants had a good meritorious defense. The present case was brought after the decision of this Court in Coleman v. Vann,
The order of the clerk, in part, is as follows: "The court further finds for the purpose of this order that the said defendant, James J. Coleman, has a good and meritorious defense to the plaintiffs' alleged cause of action, and finds that for the purposes of this order the facts are as set forth in the affidavit which the said James J. Coleman has filed in this action. The court further finds and adjudges that good and sufficient cause has been shown by the defendant, James J. Coleman, for allowing him to defend this action and for making of this order, and that this order should be made; and hereupon, it is ordered and adjudged that the defendant, James J. Coleman, be and he is allowed to defend this action, and he shall be and is permitted within thirty days from this date to plead herein. Dated this 20 October, 1933."
We see no error in this order. C.S., 492; Burton v. Smith,
In the present action, a prima facie defense was set forth by defendants and the clerk found that defendants had a good and meritorious defense. The plaintiff made certain exceptions and assignments of error to the order of the clerk and appealed to the Superior Court. The judgment of the court below, in part, is as follows: "It is ordered by the *453 court, in the exercise of its discretion, that the time for pleading by the said James J. Coleman be and is extended so as to permit the filing of said pleading, and said James J. Coleman is allowed to file said pleading and defend in this action, and that his said pleading shall remain of record as heretofore filed. This 6 November, 1933. W. C. Harris, resident judge, etc."
It is not necessary to consider the order of Judge Harris, at the November Term, 1933, it was made by consent. We see no error in the judgment of the court below. We think the matter was in the sound discretion of the court below on appeal. C.S., 536; C.S., 637; McNair v.Yarboro,
Affirmed.