Boyd v. Marsh , 47 N.C. App. 491 ( 1980 )

267 S.E.2d 394 (1980)

Kathy Sue BOYD and the Forsyth County Department of Social Services
v.
Larry Wayne MARSH.

No. 7921DC1129.

Court of Appeals of North Carolina.

July 1, 1980.

Bruce E. Colvin, Asst. County Atty., Winston-Salem, for plaintiffs-appellants.

White & Crumpler by Edward L. Powell, Winston-Salem, for defendant-appellee.

ARNOLD, Judge.

It is well-established that a party served with a summons must give the matter the attention which a person of ordinary prudence gives to his important business, and failure to do so is not excusable neglect under G.S. 1A-1, Rule 60(b)(1). See Ellison v. White, 3 N.C.App. 235, 164 S.E.2d 511 (1968); Meir v. Walton, 2 N.C.App. 578, 163 S.E.2d 403 (1968) and cases cited therein. In the instant case the facts do not support the court's conclusion that defendant's failure to answer was excusable. Defendant has a ninth grade education and can read and write. He previously has employed attorneys in other matters. The fact that in the present situation he did not believe plaintiffs could prevail does not excuse his failure to file an answer and pursue his defense. Nor does the fact that in his motion he set out a meritorious defense justify the setting aside of the default judgment, since in the absence of a showing of excusable neglect, the question of meritorious defense becomes immaterial. Meir v. Walton, supra.

The court's order setting aside the default judgment is

Reversed.

ROBERT M. MARTIN and WELLS, JJ., concur.