Sawyer ex rel. Sawyer v. Sawyer

Morris, J.

Plaintiffs do not bring forward any exceptions or assignments of error to any finding of fact by the court. The only assignment of error is to the signing and entry of the order setting aside the default judgment. We, therefore, limit ourselves to a determination of whether the facts found and -admitted are sufficient to support the judgment. 1 Strong, N. C. Index 2d, Appeal and Error, § 26; Highway Commission v. Reynolds Co., 272 N.C. 618, 159 S.E. 2d 198.

Defendant's motion to set aside was made pursuant to G.S. 1-220. To be entitled to have the judgment set aside, he must show excusable neglect and a meritorious defense. Greitzer v. Eastham, 254 N.C. 752, 119 S.E. 2d 884.

The findings of fact of Cohoon, J., are full and detailed with respect to the reasons for the failure of the defendant’s attorney to file the answer on Saturday or during the day on Monday. This was obviously the result of an inadvertent misunderstanding between counsel. However, the only finding as to defendant’s failure to come to her attorney’s office at the appointed time to sign the answer is contained in finding no. 4 “That at approximately 5:05 p.m. on Friday, September 15, 1967, defendant’s counsel telephoned plaintiffs’ counsel to advise that his client, the defendant, for some unknown reason had not come to Elizabeth City, N. C. from Norfolk, Virginia to execute the answer duly prepared . . .” Plaintiffs contend that defendant is guilty of inexcusable neglect and should not be allowed to have the default judgment set aside. The court found that “for some unknown reason” the defendant did not come to sign the answer. We will not assume that she is chargeable with inexcusable neglect. Plaintiffs did not except to the finding of fact nor request findings not made. Their exception is a general exception. This broadside assignment of error is ineffectual to challenge the findings of fact or the sufficiency of the evidence to support the findings. King v. Snyder, 269 N.C. 148, 152 S.E. 2d 92.

Plaintiffs also contend that defendant has no meritorious defense. The court found as a fact “that the answer filed by the defendant with the Clerk of Superior Court on September 18, 1967 asserts a meritorious defense . . .” Again plaintiffs took no exception to the finding of fact nor did they tender any finding which the court failed to adopt. The same rule is applicable as set out by Bobbitt, J., in King v. Snyder, supra:

“Defendant’s general exception to Judge McLean’s order does not present for review the admissibility of the evidence on which the findings of fact are based or the sufficiency of the evidence to support the findings.”

The facts found by the court are sufficient to support the judgment to set aside the default judgment.

No error.

Campbell and Britt, JJ., concur.