#### W. F. HUNTER v. ATLANTIC COAST LINE RAILROAD COMPANY.

(Filed 19 March, 1913.)

1. Justice’s Court — Appeal—Excusable Neglect — Recordari—Appeal and Error — Findings of Fact.

An appeal presently lies from an order of the Superior Court • granting a motion for a writ of recordari to a justice’s court and *504directing tbat the cause be set dawn for trial de novo, and the trial judge should find and declare the facts upon which he based the order, when it is appealed from to the Supreme Court.

2. Justice's Court — Appeal—Excusable Neglect — Appeal and Error —Meritorious Defense — Practice.

On appeal from an order of the Superior Court allowing a writ of recordari to a court of a justice of the peace on the ground of excusable neglect of a party or his ’ attorney in not perfecting his appeal from an adverse judgment therein rendered, it must be shown that the defendant had a meritorious defense, or the order appealed from will be held as reversible error.

Appeal by plaintiff from Garter, J., at January Term, 1913, of LENOIR.

Cause beard on petition for recordari to justice court.

From tbe affidavit of defendant’s counsel, tbe only evidence offered, it appeared tbat on 4 June, 1912, at and in Lenoir County, plaintiff recovered judgment against defendant, tbe Atlantic Coast Line, for wrongful failure to sbip certain household goods of plaintiff from Fargo, Ga., to Enfield, N. C., tbe same being, in breach of contract of carriage, sent to Efland, N. C.; tbat defendant company bad employed a law firm to " appear and look after tbe case, but tbe member of tbe firm who bad been spoken to about tbe case, and who usually looked after cases of this character, bad been compelled to leave and be absent from tbe State on account of sickness, and for tbat reason failed to appear at tbe trial, and, not having mentioned tbe case to his associate, tbe defendant was unrepresented at tbe trial and so lost its right to appeal; tbat tbe failure of tbe partner, in charge of tbe ease, to attend tbe trial or inform bis associate was due solely to bis sickness; tbat at tbe following term of Superior Court this application was made on notice duly given, and having been continued from time to time till January Term aforesaid, tbe court entered judgment granting tbe writ of recordari and requiring tbe justice to send up- tbe papers and tbat tbe cause be docketed for trial de novo. Thereupon plaintiff excepted and appealed.

T. G. Wooten, G. V. Gowper, and Y. T. Ormond for plaintiff.

Bouse •& Land for defendant.

*505Hoee, J.

While it is held with us that, in proceedings of this nature, and in merely formal matters, such as the giving of notice, etc., a reviewing court is allowed a very wide discretion (S. v. Johnston, 109 N. C., 852; R. R. v. Richardson, 82 N. C., 343), our decisions also hold that an order granting a writ of recordcuri to a justice’s court and directing that a cause be set down for trial de novo rests in the sound discretion of the court, and is one from which an appeal presently lies. 3 Clark’s Code Procedure, sec. 545, citing among other cases, Barnes v. Easton, 98 N. C., 116; Perry v. Whitaker, 71 N. C., 102. Authority with us, too, seems to require that, in making an order of this character, the judge should find and declare the facts upon which he bases his judgment. Collins v. Collins, 65 N. C., 135. But assuming that the court intended to adopt and approve the facts as contained in the affidavit of counsel, and that the facts contained therein make out a case of excusable neglect, we are of opinion that the order granting the writ in this instance is erroneous by reason of the utter failure to state or suggest facts showing or tending to show any meritorious defense to plaintiff’s demand. This is sometimes dispensed with where the litigant has been misled by the action of the justice of the peace (S. v. Warren, 100 N. C., 489); but where, as in this case, the failure to appear was owing to the conduct of the party himself or his attorney, excusable or otherwise, it is essential to show or properly aver a meritorious defense before the action of the justice will be disturbed. Pritchard v. Sanderson, 92 N. C., 41; S. v. Griffis, 117 N. C., 714; McKenzie v. Pitner, 19 Texas, 135; Chicago Stamping Co. v. Danly, 85 Ill. App., 322.

As heretofore stated, there are no facts set forth in the affidavit submitted which show or tend to show that defendant had any valid defense to plaintiff’s demand, and, on authority, in the absence of such showing, the order granting the writ was erroneous. This will be certified, that the same be set aside.

Error.