#### COMMERCIAL CREDIT CORPORATION v. JOHN WILLIE PEARSON, JR., and DOVIE M. PEARSON

No. 7410DC730

(Filed 2 October 1974)

Trial § 48— denial of motion to set aside judgment

The trial court did not abuse its discretion in the denial of defendants’ motion to set aside the judgment and grant them a new trial.

Appeal by defendants from Barnette, Judge, 22 March 1974 Session of District Court held in Wake County.

Plaintiff instituted this action to recover $604.91, the alleged balance due on a conditional sales contract after the automobile encumbered by the contract had been sold and proceeds of the sale applied to the indebtedness. Neither party demanded a jury trial.

Following a trial on 7 February 1974, the court made findings of fact and conclusions of law and entered judgment in favor of plaintiff for the amount prayed, plus interest and costs. On 12 February 1974, pursuant to G.S. 1A-1, Rules 59 and 60, defendants filed a motion asking that the judgment be set aside and a new trial be granted. On 26 March 1974, the court entered an order (filed 28 April 1974) denying defendants’ motion, from which order they appealed.

*228 Brady, Gardner and Wynne, by Donald E. Wynne, for plaintiff appellee.

Vaughan S. Winborne for defendant appellants.

BRITT, Judge.

Defendants’ sole assignment of error is to the signing of the order denying their motion to set the judgment aside and grant them a new trial. Assuming, arguendo, that the court had authority to grant defendants’ motion, the allowance or disallowance of the motion was in the discretion of the trial judge. Defendants have failed to show abuse of discretion, therefore, the order appealed from is

Affirmed.

Judges Hedrick and Baley concur.