Godwin v. . Brickhouse , 220 N.C. 40 ( 1941 )

Civil action for recovery of property damage allegedly sustained by plaintiff Godwin in an automobile collision as result of negligence of defendant, who in answer filed, copy of which was served on plaintiff Godwin, denies liability and sets up counterclaim for damages growing out of the same collision, which he alleges was caused by the negligence of said plaintiff. In absence of reply to counterclaim, the clerk signed judgment by default and inquiry thereon in favor of defendant. Motion of plaintiff to set aside this judgment was denied by the clerk. Upon appeal, the judge of Superior Court, upon facts found, but without specific finding that plaintiffs have a meritorious defense to the counterclaim, adjudged that neither the plaintiffs nor their counsel have been guilty of neglect, and ordered the judgment set aside and vacated.

Defendant appeals to Supreme Court and assigns error. The record discloses evidence to support the findings of fact of the court below. Furthermore, an examination of the complaint discloses that facts are alleged which, if believed, would constitute a meritorious defense. Hence, under authority of Sutherland v. McLean, 199 N.C. 345,154 S.E. 311, the judgment below is

Affirmed.