#### VOLLIE S. WHITAKER v. GEORGE RAINES and JO ALICE RAINES.

(Filed 18 September, 1946.)

1. Judgments § 27a — Evidence held insufficient to establish excusable neglect.

In this action, for the recovery of real property, the evidence tended to show that defendants were personally served with summons and a copy of the complaint, that it was agreed that pending negotiations for settlement no answer should be filed, that thereafter defendants’ attorney was notified that plaintiff would ask for judgment by default, that thereupon unverified complaint without bond or application for leave to defend without bond was filed, that notice was then served on defendants’ counsel that plaintiff would move for judgment at the next term, and that at this term the unverified answer was stricken out and judgment rendered for plaintiff. Defendants’ affidavit stated that they did not receive the letters from their attorney notifying them that negotiations had broken down and that the case had been calendared for trial. *Held,:*There was no sufficient showing of excusable neglect and the granting of defendants’ motion to set aside the judgment under G. S., 1-220, was error.

*5272. Same—

In the absence of sufficient showing of excusable neglect the question of meritorious defense becomes immaterial.

S. Same—

Parties who have been duly served with summons and copy of complaint in an action against them should give to their defense that amount of attention which a man of ordinary prudence usually gives to his important business.

Appeal by plaintiff from *Alley, J.,*at- April Term, 1946, of BuN- . combe. Reversed.

Motion by defendants to set aside judgment on tbe ground of excusable neglect. Motion allowed and plaintiff appealed.

*Sanford W. Brown for plaintiff.*

*Don C. Young for defendants.*

Devin, J.

Tbe question bere presented is wbetber tbe facts appearing in tbe record were sucb as to justify tbe court below in setting aside tbe judgment theretofore rendered in tbe cause on tbe ground of excusable neglect.

Tbe parties are all residents of Buncombe County. Tbe plaintiff instituted tbis action 10 July, 1945, to recover possession of one acre of land, alleging title in bimself and wrongful witbbolding by defendants. Personal service of summons witb copy of verified complaint was bad on defendants 11 July, 1945. At request of defendants, time to answer was extended to 25 August, and again for 30 days thereafter. No answer was filed (G. S., 1-125), or bond given-as required by G. S., 1-111, or affidavit made that defendants were unable to give bond as allowed by G. S., 1-112. On 31 December, 1945, more than three months after extended time for answering bad expired, counsel for plaintiff wrote defendants’ counsel that unless answer was filed on or before 10 January, 1946, plaintiff would ask for judgment by default. On 10 January, 1946, counsel filed an unverified answer on behalf of defendants (G. S., 1-144), but without bond or application for leave to defend without bond. Counsel for plaintiff thereupon served notice on defendants’ counsel that plaintiff would at February Term, 1946, move for judgment. Tbe ease was calendared for 11 February, 1946. When reached, tbe unverified answer was stricken out and judgment rendered for plaintiff. G. S., 1-211; G. S., 1-111. Counsel for defendants was in tbe bar at tbe time and did not interpose objection.

On 30 March, 1946, defendants filed motion to set aside tbe judgment under G. S., 1-220, alleging as grounds therefor that there bad been *528negotiations between counsel for settlement and tbat defendants did not receive letters from counsel advising them tbat negotiations bad failed, either in November, December or January, and did not know tbe cause was calendared for bearing at tbe February Term; and further tbat during tbe two weeks of tbe February Term tbe'male defendant George Raines was sick and confined to bis borne. A meritorious defense was alleged. Plaintiff replied setting out in detail bis efforts to get defendants into court, and alleged tbat after notice bad been, given defendants’ counsel of record tbat tbe case was calendared for tbe February Term counsel for defendants stated be bad been unable to get bis clients to respond or communicate with him and be could not resist judgment; further plaintiff testified tbat on 11 February be saw defendant George Raines on tbe road between bis borne and Asheville, and knew be was not sick and confined to bis borne on tbat day.

Tbe court allowed tbe defendants’ motion to set aside tbe judgment, “being of opinion from tbe evidence offered tbat defendants did not have notice tbat (tbe action was on tbe calendar for trial at tbe February Term,” and tbat defendants bad shown a meritorious defense.

*We*are unable to concur in tbe ruling of tbe learned judge who beard this motion. There are no findings of fact which would show excusable neglect on tbe part of defendants, or tbat tbe failure to file proper answer and undertaking was due to excusable neglect. *Vick v. Baker,*122 N. C., 98, 29 S. E., 64; *Pepper v. Glegg,*132 N. C., 312, 43 S. E., 906; *Johnson v. Sidbury,*225 N. C., 208, 34 S. E. (2d), 67. In tbe absence of sufficient showing of excusable neglect, tbe question of meritorious defense becomes immaterial. *Johnson v. Sidbury, supra.*Tbe plaintiff appears to have prosecuted bis action to a successful conclusion in accord with tbe orderly course of procedure prescribed for tbe determination of property rights, and judgment was entered as authorized by tbe statutes. Tbe result may not be subsequently vacated upon motion under G. S., 1-220, save upon findings of fact sufficient to justify tbe granting of relief under tbat. remedial statute. Parties who have been duly served with summons and copy of complaint in an action against them should give to their defense “tbat amount of attention which a man of ordinary prudence usually gives to bis important business.” *Sluder v. Rollins,*76 N. C., 271; *Roberts v. Allman,*106 N. C., 391, 11 S. E., 424; *Pierce v. Eller,*167 N. C., 672, 83 S. E., 758; *Holland v. Benevolent Assn.,*176 N. C., 86, 97 S. E., 150; *Cahoon v. Brinkley,*176 N. C., 5, 96 S. E., 650; *Graver v. Spaugh, ante,*450, 38 S. E. (2d), 525.

Judgment reversed.