Craver v. . Spaugh ( 1946 )

Barnhill, J.

We have held that it is the duty of a litigant to keep himself advised as to the time his cause is calendared for trial, and, when it is so calendared, he is fixed with notice thereof. Cahoon v. Brinkley, 176 N. C., 5, 96 S. E., 650. Even so, plaintiffs here employed well-known and capable counsel who regularly practice in the 'courts of For-syth County. They were notified by counsel that the cause was calendared for the third week. They relied on this information. So then, it might well be conceded that the oversight of counsel is not to be held against them.

But that is not the decisive fact here. The defendant offered evidence tending to show that plaintiffs, on 21 July, 1942, filed with him a verified statement of their claim; that on 25 July, 1942, plaintiffs were notified in writing of the rejection thereof; that the claim was not referred, G. S., 28-111, and that plaintiffs did not institute suit on said claim until 21 November, 1945, more than six months after written notice of the rejection thereof. This evidence tends to establish a complete plea in bar. G. S., 28-112. The burden of proof was on the plaintiffs. Yet they did not attempt to refute this testimony. Nor did they offer any evidence of an agreement by defendant not to plead the statute, G. S., 28-112, other than the bare statement contained in their reply, although defendant went on the stand and swore he made no such agreement. Upon this and the other evidence offered, the court below found and concluded: “Plaintiffs do not have a meritorious cause of action, and have no reasonable hope of successfully prosecuting their alleged claims.”

Existence of a meritorious cause of action is a prerequisite to relief on the motion to vacate the. former judgment. Roediger v. Sapos, 217 N. C., 95, 6 S. E. (2d), 801; Garrett v. Trent, 216 N. C., 162, 4 S. E. (2d), 319; Cayton v. Clark, 212 N. C., 374, 193 S. E., 404; Hooks v. Neighbors, 211 N. C., 382, 190 S. E., 236; Parham v. Hinnant, 206 N. C., 200, 173 S. E., 26; Parham v. Morgan, 206 N. C., 201, 173 S. E., 27; Bowie v. Tucker, 197 N. C., 671, 150 S. E., 200; Cahoon v. Brinkley, supra.

The finding that plaintiffs have no meritorious cause of action is supported by competent evidence and is conclusive on appeal. Kerr v. Bank, 205 N. C., 410, 171 S. E., 367; Carter v. Anderson, 208 N. C., 529, 181 S. E., 750; Crye v. Stoltz, 193 N. C., 802, 138 S. E., 167; Allen v. McPherson, 168 N. C., 435, 84 S. E., 766: It is binding on us. Turner v. Grain Co., 190 N. C., 331, 129 S. E., 775; Gaster v. Thomas, 188 N. C., 346, 124 S. E., 609.

On motions of this kind the movent is out of court by judgment entered. He is seeking to have the. court exercise its discretionary power to relieve him of the results of his own or his counsel’s negligence. He must then and there satisfy the judge that he has a cause of action or defense upon which he should be heard. "While the verified complaint may be used as evidence on this point, the allegations therein are not conclusive or irrebuttable. Neither will they override a finding of the judge made on conflicting testimony. The judge decides the question after consideration of all the evidence and, having decided, his finding is conclusive.

While the court at the February Term proceeded to hear evidence and submit issues there was nothing to be heard. The plaintiffs were not present and, of course, offered no evidence, and there was no demand by defendants for affirmative relief. Yet the judgment is essentially a judgment of nonsuit or dismissal. Tbe irregular proceeding does not affect its essential nature as sucb or constitute a fatal defect therein.

For tbe reasons stated tbe judgment below is

Affirmed.