Holcombe v. Bowman , 8 N.C. App. 673 ( 1970 )

175 S.E.2d 362 (1970) 8 N.C. App. 673

Percy J. HOLCOMBE, t/d/a Blue-Gray Auto Sales
v.
Jake H. BOWMAN and Melvin D. Poovey, t/d/a Lamar Motors and Gramco Finance Company, Inc. (Gramco of North Carolina, Inc.).

No. 7025SC313.

Court of Appeals of North Carolina.

July 15, 1970.

Simpson, Simpson & Martin by Dan R. Simpson, Morganton, for plaintiff appellee.

Tate, Weathers & Young by E. Murray Tate, Jr., Hickory, for defendant appellee Gramco Finance Company, Inc.

Butner & Gaither by James M. Gaither, Jr., Hickory, for defendant appellant Bowman.

VAUGHN, Judge.

The appellant contends that the trial court erred as a matter of law in its findings of fact and conclusions of law that the appellant Bowman failed to show a meritorious defense to the plaintiff's action.

The appellant offered two contentions to support his claim of a meritorious defense; namely, his general denial by way of answer to the complaint and his specific denial of being in partnership with Melvin D. Poovey. The court's findings of fact that defendant failed to show a meritorious defense are supported by the evidence and are conclusive on appeal. Floyd v. Dickey, 245 N.C. 589, 96 S.E.2d 731; Dillingham v. Blue Ridge Motors, 234 N.C. 171, 66 S.E.2d 641; Craver v. Spaugh, 226 N.C. 450, 38 S.E.2d 525; Hodge v. First Atlantic Corp., 6 N.C.App. 353, 169 S.E.2d 917. The answer of Bowman to the complaint merely denied the plaintiff's allegations and alleged no facts tending to show a meritorious defense. To merely deny indebtedness and assert the presence of a meritorious defense is not sufficient. Hooks v. Neighbors, 211 N.C. 382, 190 S.E. 236. The affidavit of Bowman in support of his motion only states, "I have a good defense to this action, as will appear from my Answer." This assignment of error is overruled.

The appellant further contends that the trial court erred as a matter of law in the findings of fact and conclusions of law that appellant Bowman failed to show his neglect to be excusable.

The trial court found:

"F. That, taken as a whole, the affidavits of Jake H. Bowman show inexcusable neglect and a failure to give his defense the attention a man of ordinary prudence would give his important business."

It is our opinion that the finding was fully supported by the affidavits introduced at the hearing and is conclusive upon this appeal. Moore v. Deal, 239 N.C. 224, 79 S.E.2d 507.

In Hodge v. First Atlantic Corp., supra, Britt, J., writing for this Court, it is said:

"The exceptional relief of G.S. § 1-220 [repealed as of 1 January 1970, replaced by Rules of Civil Procedure, Chapter 1-A, Rule 60] to set aside a judgment for mistake, inadvertence, surprise, or excusable neglect will not be granted where there is inexcusable neglect on the part of the litigant. `A lawsuit is a serious matter. He who is a party to a case in court "must give it that attention which a prudent man gives to his important business." [citations]' Pepper v. Clegg, 132 N.C. 312, 43 S.E. 906. `When a man has a case in court, the best thing he can do is to attend to it. If he neglects to do so, he cannot complain because the other party attended to his side of the matter.' Pepper v. Clegg, supra. * * *"

The affidavits presented at the hearing tended to show that Bowman received a calendar when his case was scheduled for trial in April 1966, that he was served with a subpoena by the Deputy Sheriff of Catawba County ordering him to be at trial and that he did come to the courtroom, without counsel, at the designated hour but did not remain, in the courtroom or make any inquiry of the opposing attorneys, from the clerk, or from the presiding judge of the status of his case nor did he present himself or make inquiry when he heard the name of his co-defendant, Melvin D. Poovey, mentioned by the presiding judge. Before the case was tried, the deputy sheriff called out the defendant's name three times in a loud voice and looked for him in the area surrounding the courtroom. The trial was had at the time and place at which the case had been scheduled.

There was plenary evidence to support the decision of the trial court and the appellant's motion to set aside the judgment was properly denied. We have considered the appellant's remaining assignment of error and find it to be without merit. Upon the facts shown, defendant is not entitled to relief under G.S. § 1-220, the statute in effect at the time he filed his motion, or under Rule 60 of the Rules of Civil Procedure which became effective 1 January 1970.

The order appealed from is

Affirmed.

CAMPBELL and BRITT, JJ., concur.