{
  "id": 8554631,
  "name": "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.)",
  "name_abbreviation": "Holcombe v. Bowman",
  "decision_date": "1970-07-15",
  "docket_number": "No. 7025SC313",
  "first_page": "673",
  "last_page": "677",
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    "id": 14983,
    "name": "North Carolina Court of Appeals"
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  "last_updated": "2023-07-14T18:36:14.673474+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
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  "casebody": {
    "judges": [
      "Campbell and Britt, JJ., concur."
    ],
    "parties": [
      "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.)"
    ],
    "opinions": [
      {
        "text": "YaughN, J.\nThe 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\u2019s action.\nThe 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\u2019s 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 S.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\u2019s 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, \u201cI have a good defense to this action, as will appear from my Answer.\u201d This assignment of error is overruled.\nThe 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.\nThe trial court found:\n\u201cF. 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.\u201d\nIt 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.\nIn Hodge v. First Atlantic Corp.; supra, Britt, J., writing for this Court, it is said:\n\u201cThe 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 \u201cmust give it that attention which a prudent man gives to his important business.\u201d [citations]\u2019 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.\u2019 Pepper v. Clegg, supra. * *\nThe 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, of the clerk, or of 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\u2019s 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.\nThere was plenary evidence to support the decision of the trial court and the appellant\u2019s motion to set aside the judgment was properly denied. We have considered the appellant\u2019s 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.\nThe order appealed from is\nAffirmed.\nCampbell and Britt, JJ., concur.",
        "type": "majority",
        "author": "YaughN, J."
      }
    ],
    "attorneys": [
      "Simpson and Martin by Dan R. Simpson for plaintiff appellee.",
      "Tate, Weathers and Young By E. Murray Tate, Jr., for defendant appellee Gramco Finance Company, Inc.",
      "Butner and Gaither by James M. Gaither, Jr., for defendant appellant Bowman."
    ],
    "corrections": "",
    "head_matter": "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.)\nNo. 7025SC313\n(Filed 15 July 1970)\n1. Judgments \u00a7 29\u2014 meritorious defense \u2014 mere denial of indebtedness\nThe trial court properly found that defendant failed to show a meritorious defense where defendant\u2019s affidavit in support of his motion to set aside a judgment against Rim merely stated, \u201cI Rare a good defense to this action, as will appear from my Answer,\u201d and defendant\u2019s answer to tRe complaint merely denied plaintiff\u2019s allegations and alleged no facts tending to sRow a meritorious defense.\n2. Judgments \u00a7 25\u2014 inexcusable neglect \u2014 failure to appear at trial\nIn tRis proceeding upon motion of defendant to set aside a judgment rendered against Rim in a trial at wRich Re failed to appear, tRe trial court did not err in its findings of fact and conclusion of law tfiat defendant failed to sRow excusable neglect, wRere affidavits presented at the Rearing showed that defendant received a calendar showing when his case was scheduled for trial, that the trial was held at the scheduled time and place, that defendant was subpoenaed to appear at the trial, that Re went to the courtroom, without counsel, at the designated hour but did not remain in the courtroom or mate any inquiry of the attorneys, clerk or judge as to the status of his case, and that he did not present himself or make inquiry when he heard the name of Ris co-defendant mentioned by the presiding judge.\nAppeal by defendant Jake H. Bowman from Martin (Harry C.), J.} 5 January 1970 Regular Civil Session, Catawba Superior Court.\nThis is a civil action in which the plaintiff, Percy J. Holcombe, t/d/a Blue-Gray Auto Sales, hereinafter referred to as Auto Sales, sought to recover the purchase price of seven (7) automobiles which were sold- by Auto Sales to Lamar Motors on 15 June 1964 at a price of $17,300.00. Lamar Motors issued seven (7) checks to Auto Sales but such checks were not honored by Northwestern Bank due to insufficient funds in the account of Lamar Motors.\nAuto Sales filed a complaint on 11 August 1964 seeking payment from Jake H. Bowman and Melvin D. Poovey as owners of Lamar Motors and from Gramco Finance Company, Inc., hereinafter referred to as Gramco Finance, who Auto Sales alleged to be in possession of the automobiles. The defendants answered separately denying the allegations of Auto Sales. Gramco Finance further alleged that Auto Sales delivered the automobiles to Lamar Motors along with bills-of sale and thereafter Lamar Motors executed mortgages to Gramco Finance borrowing $15,000.00 which has not yet been repaid in full.\nThe cause came on for hearing before Froneberger, J., at the 25 April 1966 Term of the Superior Court of Catawba County. Representatives and counsel for Auto Sales and Gramco Finance were present -upon- the \u25a0 cause coming for trial and were ready for trial. Neither of the individual defendants were present nor represented by counsel. Tfial of the case proceeded. The parties present in court settled, adjusted \u2022 and\u2019 compromised all matters in controversy between them. Evidence was heard and issues submitted to the court sitting as a jury. Judgment was entered in favor of Auto Sales against the individually named defendants in the amount of $17,-300.00.\nOn 29 April 1966, appellant Bowman moved that the judgment against him be set aside, alleging 'no notice of the prior proceeding and the existence of a meritorious defense, surprise and excusable neglect. Affidavits were offered in support of his contentions. On the same day an order was entered by Judge Froneberger restraining Auto Sales and the Sheriff of Catawba County from executing the judgment until hearing at the next civil term. The motion came on for hearing before Ervin, J., on 12 September 1967 who refused to hear the matter because of lack of jurisdiction since the appellant had appealed the judgment to the North Carolina Supreme Court. The appeal was dismissed on 30 August 1968 for failure of appellant Bowman to perfect his appeal.\nThe motion was heard before Martin (Harry C.), J., at the 5 January 1970 Session of the Superior Court of Catawba County. The court made findings of fact and conclusions of law denying appellant Bowman\u2019s motion to set the judgment aside. From his order appellant Bowman appeals.\nSimpson and Martin by Dan R. Simpson for plaintiff appellee.\nTate, Weathers and Young By E. Murray Tate, Jr., for defendant appellee Gramco Finance Company, Inc.\nButner and Gaither by James M. Gaither, Jr., for defendant appellant Bowman."
  },
  "file_name": "0673-01",
  "first_page_order": 697,
  "last_page_order": 701
}
