Burke v. . Stokely
Supreme Court of North Carolina
Motion to- vacate a judgment, heard before Gloud, J., at-Spring Term, 1871, of Rowan Superior Court, upon the following facts: The action was made returnable to Eall Term, 1861, oí Rowan Superior Court, and judgment by default and enquiry was rendered at Eall Term, 1863. It appeared from the evidence that the defendants wrote to-the late N. N. Fleming, then an attorney of the Salisbury bar,, and employed him to plead to the suit, stating that they had a meritorious defence.
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Motion to- vacate a judgment, heard before Gloud, J., at-Spring Term, 1871, of Rowan Superior Court, upon the following facts: The action was made returnable to Eall Term, 1861, oí Rowan Superior Court, and judgment by default and enquiry was rendered at Eall Term, 1863. It appeared from the evidence that the defendants wrote to-the late N. N. Fleming, then an attorney of the Salisbury bar,, and employed him to plead to the suit, stating that they had a meritorious defence. There was no evidence to show whether Mr. Fleming ever received this letter or not, but at all events he entered no…
1Opinion of the CourtPearson, C. J.
The .motion to vacate embraced both the judgment by default and the final judgment. The attention of his Honor, seems not to have been called to this fact. We concur with him in the conclusion that the defendants do not make out a case of “ mistake, inadvertance, surprise or excusable negligence.” C. C. P., sec. 133. So the motion was properly refused, in respect to the judgment by default; but to the final j udgment, there was a further objection. It was rendered after the death of one of the defendants. At common law, this would have paused an abatement of the action. 8 and 9 Will. III, ch.…
2Cases cited1 opinion
- Foard v. . AlexanderSupreme Court of North Carolina · 1870
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