Smith v. Holmes Bros.
Supreme Court of North Carolina
ActioN heard by Goolce, J., at Eall Term, 1908, of JACKSON. This is an appeal from an order of his Honor, Judge Guión, setting aside a judgment of nonsuit rendered at a former term of the court. The, ground of the application was that the absence of plaintiff’s counsel was caused by excusable mistake. A number of affidavits and a “statement” by Judge 0. n. Allen, wbo rendered tbe judgment of nonsuit, were submitted to his Honor.
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ActioN heard by Goolce, J., at Eall Term, 1908, of JACKSON. This is an appeal from an order of his Honor, Judge Guión, setting aside a judgment of nonsuit rendered at a former term of the court. The, ground of the application was that the absence of plaintiff’s counsel was caused by excusable mistake. A number of affidavits and a “statement” by Judge 0. n. Allen, wbo rendered tbe judgment of nonsuit, were submitted to his Honor. The order setting aside the judgment of nonsuit taxed the plaintiff with the entire cost accrued to the time-of the judgment, together with certain traveling expenses…
1Opinion of the CourtOoNNOR, J.
It is settled by a number of decisions of this Court that, upon a motion to set aside a judgment for excusable mistake or neglect, the Judge should find the facts. The reason for this requirement has been set out and need not be-repeated. Marsh v. Griffin and other cases cited in Clark’s Code (3d Ed.), pp. 310, 311. It is usual in cases which come to us in the condition presented by this record to remand the case for the purpose of having the facts found. We have examined the record with care and find no controversy in regard to the material facts. They appear very largely from the statement…
2Cited by3 opinions
- Turner v. Southeastern Grain & Livestock Co.Supreme Court of North Carolina · 1925
- North Carolina Mutual & Provident Ass'n v. EdwardsSupreme Court of North Carolina · 1915
- S. J. Bartholomew & Co. v. ParrishSupreme Court of North Carolina · 1925