Texas Western Financial Corp. v. Mann

243 S.E.2d 904 (1978)

TEXAS WESTERN FINANCIAL CORPORATION v. Irving MANN, d/b/a Mann's Department Store.

No. 7713DC629.

Court of Appeals of North Carolina.

May 16, 1978.

*906 Moore & Melvin by James R. Melvin, Elizabethtown, for plaintiff appellant.

No counsel contra.

PARKER, Judge.

Plaintiff contends that the trial judge erred in setting aside the default judgment because there was insufficient evidence from which the court could find excusable neglect on defendant's part. We agree and accordingly reverse.

"Parties who have been duly served with summons are required to give their defense that attention which a man of ordinary prudence usually gives his important business, and failure to do so is not excusable." 8 Strong's N.C. Index 3d, Judgments § 25, p. 57; Whitaker v. Raines, 226 N.C. 526, 39 S.E.2d 266 (1946); Johnson v. Sidbury, 225 N.C. 208, 34 S.E.2d 67 (1945); Meir v. Walton, 2 N.C.App. 578, 163 S.E.2d 403 (1968). Although the cases just cited were decided under former G.S. 1-220 which has now been replaced by G.S. 1A-1, Rule 60(b)(1), the procedure under Rule 60(b) is "analogous to the former practice under G.S. 1-220," Brady v. Town of Chapel Hill, 277 N.C. 720, 724, 178 S.E.2d 446, 448 (1971), and the principles announced in the case decided under former G.S. 1-220 still apply. Doxol Gas v. Barefoot, 10 N.C.App. 703, 179 S.E.2d 890 (1971). Upon hearing a motion to set aside a judgment on the ground of excusable neglect, the trial court should make findings of fact from which it can determine, as a matter of law, whether excusable neglect has been shown. "Whether excusable neglect has been shown is a question of law, not a question of fact." Equipment, Inc. v. Lipscomb, 15 N.C.App. 120, 122, 189 S.E.2d 498, 499 (1972). The trial court's findings of fact are final, unless exception is made that there was no evidence to support the findings of fact or that there was a failure to find sufficient material facts. Norton v. McLaurin, 125 N.C. 185, 34 S.E. 269 (1899). The trial court's conclusion of law, that excusable neglect has or has not been shown, is reviewable on appeal. Ellison v. White, 3 N.C.App. 235, 164 S.E.2d 511 (1968).

In the present case the trial court did not make any findings of fact on which it based its legal conclusion that there had been excusable neglect. Had it been requested to do so, it would have been error for the court not to have found the facts. Sprinkle v. Sprinkle, 241 N.C. 713, 86 S.E.2d 422 (1955). However, absent a request it was not required to do so. G.S. 1A-1, Rule 52(a)(2), although it would have been better practice to have done so. The record in the *907 present case does not disclose any request that the court make findings of fact.

The question presented by this appeal thus becomes whether, on the evidence before it, the court could have made findings of fact sufficient to support its legal conclusion that excusable neglect had been shown. So far as the record discloses, the only matter presented in support of defendant's motion was his unverified memorandum. Even if this be accepted as competent and even if all statements therein be accepted as true, we find it insufficient as a matter of law to show excusable neglect. The crucial allegation in defendant's memorandum, though somewhat ambiguous, is that "the attorney for plaintiff misrepresented to the undersigned [defendant] that he would give him an opportunity to inspect the defendant's dead files for 1973 and 1974." Defendant did not claim that plaintiff's attorney promised to delay the litigation for any specific period, and he presented nothing to show that he did not have a sufficient opportunity to inspect his own files, which were presumably in his custody and control. The record shows that in addition to the thirty-day period allowed by law, G.S. 1A-1, Rule 12(a)(1), plaintiff's attorney gave defendant approximately an extra month to file his answer before obtaining the default judgment. Nothing in defendant's memorandum supports his characterization of the conduct of plaintiff's attorney as misrepresentation. On his own statement, defendant simply did not give to his defense the attention which a man of ordinary prudence usually gives his important business.

In the absence of sufficient showing of excusable neglect, the question of whether defendant had a meritorious defense becomes immaterial. Stephens v. Childers, 236 N.C. 348, 72 S.E.2d 849 (1952); Whitaker v. Raines, supra; Johnson v. Sidbury, supra. Because defendant presented insufficient evidence to support the trial court's conclusion of excusable neglect, the order setting aside the judgment is

Reversed.

VAUGHN and WEBB, JJ., concur.