#### WACHOVIA BANK AND TRUST COMPANY v. E. D. TURNER and His Wife, BERNICE E. TURNER, and R. C. CLICK.

(Filed 27 January, 1932.)

Judgments K b — Wife’s neglect to file answer upon assurances of husband that he would do so held excusable in joint action against them.

Where a husband and wife living together are sued on a joint cause of action, and the wife, relying on the assurances of her husband that he would employ counsel and cause an answer to be filed in her behalf, neglects to file an answer within the time prescribed, and a judgment by default is entered against her, and immediately upon notice of the judgment she employs counsel and moves to set aside the judgment for surprise and excusable neglect, C. S., 600: *Held;*the neglect of the wife is excusable, and upon a proper showing of a meritorious defense, her motion is properly allowed, the provisions of the Martin Act, C. S., 2507, not affecting the relation of husband and wife or the rights and duties arising therefrom.

Appeal by plaintiff from *Clement,*Jat April Special Term, 1931, of Forsyth.

Affirmed.

This action was begun in the Forsyth County Court. The summons and a copy of the verified complaint filed therein were duly served on each of the defendants. The cause of action alleged in the complaint was founded on a promissory note for the sum of $750, dated 11 January, 1929, and due on 10 June, 1929. The note sued on is payable to the plaintiff; it is alleged in the complaint that the note was executed by the defendants, E. D. Turner and his wife, Bernice E. Turner, and was endorsed, before its delivery to the plaintiff, by the defendant, R. 0. Click.

Neither of the defendants filed an answer to the complaint within the time prescribed by statute. On 5 May, 1930, judgment by default final was rendered by the clerk of the Forsyth County Court in favor of the plaintiff and against the defendants for the sum of $750, with interest and costs.

On 22 September, 1930, pursuant to notice in writing served on the plaintiff, the defendant, Bernice E. Turner, moved before the clerk of the Forsyth County Court that the judgment rendered by said clerk on 5 May, 1930, in this action be set aside and vacated, on the ground that she has a meritorious defense .to said action, and that her neglect to file an answer to the complaint, setting up such defense, was excusable. Upon the hearing of this motion, the clerk found from all the evidence that the defendant, Bernice E. Turner, has a meritorious defense to the action, but that her neglect to file an answer to the complaint was not *163excusable. Tbe motion was denied, and defendant appealed to tbe judge of tbe Forsyth County Court. At tbe bearing of tbis appeal, tbe judge approved tbe findings of fact and conclusions of law made by tbe clerk, and affirmed bis order denying defendant’s motion. Tbe defendant excepted and appealed to tbe judge of tbe Superior Court of Forsytb County. At tbe bearing of tbis appeal, defendant’s assignments of error were sustained.

From judgment reversing tbe judgment of tbe judge of tbe Forsytb County Court, and remanding tbe action to said court, with direction tbat tbe judgment by default final against tbe defendant be set aside and vacated, and tbat defendant be allowed to file an answer to tbe complaint in said court, plaintiff appealed to tbe Supreme Court.

*Fred S. Hutchins and H. Bryce Parker for plaintiff.*

*Peyton B. Abbott and Hastings & Booe for defendant.*

ConNOe, J.

In ber affidavit filed with tbe clerk of tbe Forsytb County Court in support of ber motion tbat tbe judgment rendered in tbis action in favor of tbe plaintiff and against ber, be set aside and vacated, tbe defendant, Bernice E. Turner, denies tbat she executed tbe note sued on in tbis action as alleged in tbe complaint; she alleges tbat she did not sign tbe note as maker or otherwise, and tbat if ber name appears thereon, it is a forgery, or at least tbat it was signed to tbe note without ber authority. There was evidence at tbe bearing of tbe motion by tbe clerk in support of defendant’s affidavit. Tbe clerk found from all tbe evidence tbat defendant has a meritorious defense to tbe action. Tbis finding was approved by tbe judge of tbe Forsytb County Court, on defendant’s appeal from tbe order of tbe clerk of said court denying ber motion. It was also approved by tbe judge of tbe Superior Court of Forsytb County on defendant’s appeal from tbe judgment of tbe judge of tbe Forsytb County Court, affirming tbe order of tbe clerk of said court. It is therefore established tbat defendant has a meritorious defense to tbe action, and tbat if tbis defense is sustained at a trial of tbe action on its merits, tbe defendant is not liable to tbe plaintiff on tbe note sued on in tbis action.

It appears from tbe affidavit of tbe defendant tbat at tbe date of tbe service of tbe summons and complaint in tbis action on tbe defendant and ber husband, E. D. Turner, tbe said defendants were living together as husband and wife in tbe city of Winston-Salem; tbat ber husband assured tbe defendant tbat be bad employed counsel to defend tbe action, and tbat be would look after ber defense and file an answer to tbe complaint in' ber behalf; tbat tbe defendant relied upon tbe assur-*164anee of her husband that he would cause an answer to be filed in defendant’s behalf, setting up her defense to the action; and for this reason defendant did not attend the court in person or by attorney; and that she did not discover until after she was notified by the attorney for the plaintiff that judgment had been rendered in the action against her, that no answer had been filed therein on her behalf. Immediately upon receiving such notice defendant employed counsel, and caused notice to be served on plaintiff that she would move that the judgment be set aside and vacated in accordance with the provisions of C. S., 600.

The clerk of the Forsyth County Court found that the neglect of the defendant to file an answer to the complaint within the time prescribed by statute was not excusable, and for this reason, notwithstanding his finding that defendant has a meritorious defense .to the action, denied her motion. The judge of the Forsyth County Court was of opinion that there was no error in the order of the clerk of said court, denying defendant’s motion, and for that reason affirmed said order. The judge of the Superior Court of Forsyth County sustained defendant’s assignments of error based upon her exceptions appearing in the record, reversed the judgment of the judge of the Forsyth County Court, and remanded the action to said court, with direction that the judgment by default final against the defendant be set aside and vacated, and that defendant be allowed to file an answer in said court to the complaint, setting up her defense to the action.

The question of law presented by this appeal may be stated as follows: Is the neglect of a wife, who is living with her husband, and who is sued on a joint cause of action with her husband, to file an answer to the complaint, within the time prescribed by statute, because of the assurance of her husband that he will employ counsel and cause an answer to be filed setting up a meritorious defense to the action in her behalf, excusable within the provisions of O. S., 600? *We*are of the opinion that under these circumstances her neglect is excusable. It was so held in *Nicholson v. Cox,*83 N. C., 49, and in *SiJces p. Weatherly,*110 N. C., 131, 14 S. E., 511. The decision in neither of these cases has been overruled or' modified by this Court.

C. S., 2507, known as the Martin Act, does not affect or purport to affect the relation of husband and wife, or their mutual rights and duties growing out of the marital relation. As said by *Merrimon, C. J.,*in *Sikes v. Weatherly, supra,*the wife may rely upon her husband’s promise to employ counsel for her, at her request, when a summons in a. civil action has been served on her. Her neglect to file an answer to the • complaint, because of her reliance on her husband’s promise to do so, is excusable. The judgment is

Affirmed.