Abernethy v. Nichols

105 S.E.2d 211 (1958) 249 N.C. 70

Joseph A. ABERNETHY, J. Glenn Abernethy, and Hal T. Abernethy, Partners trading and doing business under the firm name of Abernethy Lumber Company,
v.
Kenneth G. NICHOLS and Mary S. Nichols.

No. 242.

Supreme Court of North Carolina.

October 15, 1958.

Sedberry, Sanders & Walker, Charlotte, for plaintiffs-appellants.

Whitlock, Dockery, Ruff & Perry, Charlotte, by James O. Cobb, Jr., Charlotte, for defendants-appellees.

WINBORNE, Chief Justice.

Is there error in the judgment from which plaintiffs appeal? In the light of statute G.S. § 1-220, under which appellee moves, and decisions of this Court, Wachovia Bank & Trust Co. v. Turner, 202 N.C. 162, 162 S.E. 221; Sikes v. Weatherly, 110 N.C. 131, 14 S.E. 511, and Nicholson v. Cox, 83 N.C. 48, the answer to the question is in the negative.

It is provided by statute, G.S. § 1-220, that: "The judge shall, upon such terms as may be just, at any time within one year after notice thereof, relieve a party from a judgment * * * taken against him through his * * * excusable neglect * * *." That is, if the party, moving timely, can show excusable neglect, and that he has a meritorious defense the judgment so taken may be set aside. See Dunn v. Jones, 195 N.C. 354, 142 S.E. 320; Van Hanford v. McSwain, 230 N.C. 229, 53 S.E.2d 84; Stephens v. Childers, 236 N.C. 348, 72 S.E.2d 849, and numerous other cases.

And this Court has held that under G.S. § 1-220 a wife's failure or neglect to file answer in a suit against her and her husband, upon assurances by her husband that he will be responsible for and assume the defense of the action, is excusable neglect. See Wachovia Bank & Trust Co. v. Turner, supra, where the cases of Sikes v. Weatherly, supra, and Nicholson v. Cox, supra, are cited with approval. While the facts in these cases are not identical with those in case in hand, the principle there applied is applicable here.

On the authority of decisions in these cases, applied to facts of case in hand, the conduct of the feme defendant in relying upon her husband under the circumstances portrayed in the findings of fact is excusable neglect. And the finding of the Court that Mary S. Nichols has a meritorious defense to the cause of action alleged in the complaint appears to be supported by competent evidence. Hence the judgment below must be affirmed. Therefore let it be so certified, to the end that Mrs. Mary S. Nichols may be allowed to set up any defense she may have to the action of the plaintiffs. Nicholson v. Cox, supra.

Affirmed.

JOHNSON and PARKER, JJ., not sitting.