Johnson v. Sidbury

23 Citing cases

  1. Pate ex rel. Wright v. R. L. Pittman Hospital, Inc.

    68 S.E.2d 288 (N.C. 1951)   Cited 10 times

    In ruling on a motion to set aside a judgment for excusable neglect, the rule is that parties who have been duly served with summons are required to give to their defense "that amount of attention which a man of ordinary prudence usually gives to his important business." Sluder v. Rollins, 76 N.C. 271; Roberts v. Allman, 106 N.C. 391, 11 S.E. 424; Pierce v. Eller, 167 N.C. 672, 83 S.E. 758; Queen v. Gloucester Lumber Co., 170 N.C. 501, 87 S.E. 325; Cahoon v. Brinkley, 176 N.C. 5, 96 S.E. 650; Elramy v. Abeyounis, 189 N.C. 278, 126 S.E. 743; Lumber Co. v. Chair Co., 190 N.C. 437, 130 S.E. 12; Johnson v. Sidbury, 225 N.C. 208, 34 S.E.2d 67. Anything short of this requirement would endanger the vital mechanics of orderly court procedure as fixed by statute. We conclude that the facts as found by the court below do not in law constitute such excusable neglect as will relieve an intelligent and active business man from the consequences of his inattention, as against a diligent suitor proceeding in accordance with orderly procedure fixed by statute.

  2. Wood v. Wood

    297 N.C. 1 (N.C. 1979)   Cited 18 times
    Holding that the trial court erred by denying the plaintiff's oral motion to vacate a divorce judgment on the basis of the oral motion's failure to meet the requirements of motion practice because "the judge was fully aware of the basis for plaintiff's motion" and so indicated during the hearing

    These cases are readily distinguished from those where relief on the basis of excusable neglect has been denied when the party has himself been inattentive to his action. See, e.g., Johnson v. Sidbury, 225 N.C. 208, 34 S.E.2d 67 (1945). The rule which we have cited has been employed most often to relieve a defendant with a meritorious defense from a default judgment.

  3. Jones v. Fuel Co.

    259 N.C. 206 (N.C. 1963)   Cited 17 times
    Stating that litigants are expected to pay "`that attention which a man of ordinary prudence usually gives his important business, and failure to do so is not excusable'"

    It is generally held under the above statute that "(p)arties who have been duly served with summons are required to give their defense that attention which a man of ordinary prudence usually gives his important business, and failure to do so is not excusable." Strong, North Carolina Index, Judgments, section 22; Whitley v. Caddell, 236 N.C. 516, 73 S.E.2d 162; Pate v. Hospital, 234 N.C. 637, 68 S.E.2d 288; Whitaker v. Raines, 226 N.C. 526, 39 S.E.2d 266; Johnson v. Sidbury, 225 N.C. 208, 34 S.E.2d 67. Where a defendant engages an attorney and thereafter diligently confers with the attorney and generally tries to keep informed as to the proceedings, the negligence of the attorney will not be imputed to the defendant.

  4. Morton v. Insurance Co.

    121 S.E.2d 716 (N.C. 1961)   Cited 4 times

    In Presnell v. Beshears, 227 N.C. 279, 41 S.E.2d 835, in passing upon a like motion, this Court, in opinion by Devin, J. (later C.J.), said: "The effect of the failure of the defendants to appear in response to the summons and complaint personally served upon them was to establish pro confesso in the plaintiff a right of action of the kind properly pleaded in the complaint and thereupon the plaintiff became entitled as a matter of law to recover on the cause of action set out in his complaint. G.S. 1-212; DeHoff v. Black, 206 N.C. 687, 175 S.E. 179; Johnson v. Sidbury, 225 N.C. 208, 34 S.E.2d 67. Defendants' failure to answer, however, admitted only the averments in the complaint and did not preclude them from showing, if they could, on this motion, that such averments were insufficient to warrant recovery. Beard v. Sovereign Lodge, 184 N.C. 154, 113 S.E. 661; Strickland v. Shearon, 193 N.C. 599 (604), 137 S.E. 803. Hence they were entitled to have the judgment vacated if the facts set out in the complaint should be determined to be insufficient to constitute a cause of action, as there would then be no basis upon which the default judgment could be predicated.

  5. Greitzer v. Eastham

    119 S.E.2d 884 (N.C. 1961)   Cited 9 times

    A defendant is not entitled to have a judgment by default set aside in the absence of a showing by him and a finding by the court that his neglect was excusable and that he had a meritorious defense to plaintiff's cause of action. Wilson v. Chandler, 238 N.C. 401, 78 S.E.2d 155; Stephens v. Childers, 236 N.C. 348, 72 S.E.2d 849; Perkins v. Sykes, 233 N.C. 147, 63 S.E.2d 133; Whitaker v. Raines, 226 N.C. 526, 39 S.E.2d 266; Johnson v. Sidbury, 225 N.C. 208, 34 S.E.2d 67. In the absence of a showing of excusable neglect, the question as to whether or not the defendant has a meritorious defense becomes immaterial.

  6. Sanders v. Chavis

    243 N.C. 380 (N.C. 1956)   Cited 12 times

    In light of the finding that the defendant's negligence was inexcusable the fact that he may have a meritorious defense, and the court so found, becomes immaterial. Stephens v. Childers, 236 N.C. 348, 72 S.E.2d 849; Pate v. Hospital, 234 N.C. 637, 68 S.E.2d 288; Whitaker v. Raines, 226 N.C. 526, 39 S.E.2d 266; Johnson v. Sidbury, 225 N.C. 208, 34 S.E.2d 67. We do not consider what defenses the defendant's insurer may interpose by reason of the failure of Alford Chavis to notify it of the institution of this action against him, by reason of the terms of the policy or pursuant to the provisions of the Motor Vehicle Safety and Responsibility Act (G.S. 20-224 through 20-279).

  7. Moore v. Deal

    239 N.C. 224 (N.C. 1954)   Cited 38 times
    In Moore v. Deal, 239 N.C. 224, 79 S.E.2d 507, the Court set out the general principles of law established by its decisions applicable where a litigant relies on neglect of counsel to set aside a judgment by default.

    The standard of care required of the litigant is that which a man of ordinary prudence usually bestows on his important business. Whitaker v. Raines, 226 N.C. 526, 39 S.E.2d 266; Johnson v. Sidbury, 225 N.C. 208, 34 S.E.2d 67; Jones-Onslow Land Co. v. Wooten, 177 N.C. 248, 98 S.E. 706. The attorney employed "must be one licensed to practice in this State, and his negligence on which the prayer for relief is predicated must have been some failure in the performance of professional duties which occurred prior to and was the cause of the judgment sought to be vacated."

  8. Wilson v. Chandler

    78 S.E.2d 155 (N.C. 1953)   Cited 6 times

    Therefore, the movant was not entitled to have the judgment set aside in the absence of a showing by him and a finding by the court that his neglect was excusable and that he has a meritorious defense to plaintiffs' cause of action. Stephens v. Childers, 236 N.C. 348, 72 S.E.2d 849; Perkins v. Sykes, 233 N.C. 147, 63 S.E.2d 133; Manford v. McSwain, 230 N.C. 229, 53 S.E.2d 84; Whitaker v. Raines, 226 N.C. 526, 39 S.E.2d 266; Johnson v. Sidbury, 225 N.C. 208, 34 S.E.2d 67. Since there is no showing or finding in the court below that the appellee's failure to answer was due to excusable neglect and that he has a meritorious defense, it was error to strike out the default judgment, and the order to that effect is set aside and the cause remanded for further proceedings as provided by law.

  9. Whitley v. Caddell

    73 S.E.2d 162 (N.C. 1952)   Cited 3 times

    Roach v. Pritchett, 228 N.C. 747, 47 S.E.2d 20; Hall v. Hall, supra. There are no facts found by the court which would establish excusable neglect on the part of the defendants. Vick v. Baker, 122 N.C. 98, 29 S.E. 64; Pepper v. Clegg, 132 N.C. 312, 43 S.E. 906; Johnson v. Sidbury, 225 N.C. 208, 34 S.E.2d 67. Therefore, the law was correctly applied to the facts found, and defendants' motion was properly denied. The defendants should have exercised that degree of diligence ordinarily employed by men of reasonable prudence in looking after business matters of the same or similar importance.

  10. Stephens v. Childers

    236 N.C. 348 (N.C. 1952)   Cited 22 times
    In Stephens v. Childers, 236 N.C. 348, 72 S.E.2d 849, it is said: "The rule is established with us that ordinarily the inexcusable neglect of a responsible agent will be imputed to the principal in a proceeding to set aside a judgment by default.

    It is established by the decisions of this Court that a party moving under the provisions of G.S. 1-220 to set aside a judgment rendered against him on the ground of excusable neglect not only must show excusable neglect but also must make it appear that he has a meritorious defense to the plaintiff's cause of action. Perkins v. Sykes, 233 N.C. 147, 63 S.E.2d 133; Hanford v. McSwain, 230 N.C. 229, 53 S.E.2d 84; Whitaker v. Raines, 226 N.C. 526, 39 S.E.2d 266; Johnson v. Sidbury, 225 N.C. 208, 34 S.E.2d 67; Parnell v. Ivey, 213 N.C. 644, 197 S.E. 128; Dunn v. Jones, 195 N.C. 354, 142 S.E. 320. The defendant urges that the court erred in finding (1) "that the record discloses no evidence or testimony that would warrant any court in finding excusable neglect," and (2) in failing to find "that the negligence of Iowa National Mutual Insurance Company constituted excusable neglect on the part of the defendant."