#### GEORGE O. GAYLORD v. LEVI BERRY.

(Filed 27 October, 1915.)

1. Judgments — Motions—meritorious Defense — Findings—Prima Facie Case— Trials — Questions for Jury.

Upon motion to set aside a judgment for excusable neglect, where matters are stated by affidavit and relied upon as constituting a meritorious defense, the judge of the Superior Court hearing the motion should make his findings of fact from the matters set forth and draw his conclusions of law therefrom as to whether a prima facie case has been established; and if the movant in good faith shows facts which raise an issue sufficient to defeat his adversary, if found in his favor, this issue should be determined by the jury.

*7342. Appeal and Error — Findings of Fact — Judgments—Excusable Neglect— Questions for Court.

Upon appeal from the refusal of the Superior Court judge to set aside a judgment for excusable neglect where matters are alleged and relied upon as constituting a meritorious defense, the findings of fact of the judge will not he reviewed on appeal, but whether upon the facts found excusable neglect has been prima facie shown is a matter of law reviewable on appeal.

3. Judgments — Motions—Excusable, Neglect — Evidence Sufficient.

Upon motion to set aside a judgment for excusable neglect, a prima facie case is shown by defendant, the movant, when he has established the facts that he employed and paid an attorney regularly practicing in the county wherein the action had been brought; that he put the attorney in possession of the facts relied upon as a defense; that the attorney promised to attend court and look out for the movant’s interests, but failed to file an answer, and judgment by default was entered against him; that the movant acted with ordinary prudence and was not, himself, in default, and that his attorney is insolvent.

4. Appeal and Error — Motions—Judgments—Excusable Neglect — Insufficient Findings — Case Remanded.

On this appeal from the refusal of the judge of the Superior Court to set aside a judgment on the ground of excusable neglect, with proper allegation of facts upon the question of a meritorious defense, the case is remanded to the lower court with directions to set aside the findings and make new and fuller findings of fact, with leave to the parties to file additional affidavits, if they are so advised.

Appeal' by defendant from Wedbee, J., at chambers; from BkuNS-wick.

Civil action, beard at chambers, on 4 May, 1915, upon motion of defendant to' vacate the judgment therein.

The defendant had executed a mortgage to one J. R. Green, on his homestead in Brunswick County to secure a debt of $377.50. After the debt fell due, and was not paid, as alleged by Green, the latter advertised and sold the land under the power contained in the mortgage, and it was .bought by the plaintiff, to whom a deed was executed by Green. Plaintiff then commenced this action for the possession of the land, obtained judgment by default for the want of an answer, and caused a writ of possession to be issued. Defendant moved to set aside the judgment on account of surprise, mistake and excusable neglect, and he alleged that as soon as the summons in this action was served upon him, he employed a reputable attorney to defend the action in his behalf and informed him of the facts; and that he had a good defense, and that his attorney failed to attend the court, for some reason not appearing, but without defendant’s fault, after having promised him that he would give the matter proper attention, and specially that he would attend March Term of the court, the return term, enter an appearance for him and take charge of the defense. This he did not do, and judgment was taken against defendant, without his knowledge, until a few days after court *735bad adjourned. Tbat be bad satisfied tbe debt before tbe sale under tbe mortgage was advertised, and tbat bis wife’s signature to tbe mortgage was a forgery, as sbe bad refused to sign it or to submit to a privy examination, none baying been taken. J. R. Green was not examined as a witness to disprove tbis allegation of payment, tbougb there was some evidence, if not very clear and convincing, and given only upon recollection, tbat tbe privy examination was regularly taken, but tbe notary admitted tbat there bad been objection by tbe wife, due to her daughter’s advice. There was other evidence not necessary to be stated. Tbe judge decided tbat there was no excusable neglect, and no meritorious defense. He refused tbe motion. Defendant excepted and appealed.

0. Ed. Taylor for plaintiff.

John D. Bellamy for defendant.

Walkee, J.,

after stating tbe case: We do not think tbe findings of fact are sufficient for us to decide tbis matter without tbe danger of doing injustice to one or tbe other of tbe .parties. Tbe court refers to tbe affidavits and finds from them, but without stating tbe particular facts upon which be bases bis opinion in law, tbat defendant has no meritorious defense. ILe seems to have passed upon tbe truth or falsity of tbe defense set up, and not to have treated it as presenting a prima facie case, which be should have done. Where a party, in good faith, shows facts which raise an issue sufficient to defeat bis adversary, if it be found in bis favor, it is for tbe jury to try tbe issue and not for tbe judge, who merely finds whether on their face tbe facts show a good defense in law; otherwise, tbe defendant, tbougb be establish ever so clear a case of excusable neglect entitling him to have tbe judgment set aside, would be deprived of tbe right of trial by tbe jury of tbe issue thus raised. As tbe court has referred to what is stated in tbe affidavits as tbe ground of the ruling tbat there is no meritorious defense, we have examined them and find tbat they do state such a defense, if they correctly aver tbe facts, and especially when considered in connection with other circumstances. Tbe court should have stated what tbe defense was, or tbe facts in regard to it, so tbat tbis Court could pass upon its legal merit. Marsh v. Griffin, 123 N. C., 660; Oldham v. Sneed, 80 N. C., 15; Smith v. Hahn, ibid., 240; Bryant v. Fisher, 85 N. C., 69; Winborne v. Johnson, 95 N. C., 46; Clark’s Code (3 Ed.), p. 310. We cannot review or reverse tbe judge’s findings of fact on a motion of tbis kind, but we can revise bis ruling upon tbe law, if erroneous, and what is excusable neglect is a question of law. Powell v. Weith, 68 N. C., 342.

If tbis defendant retained a reputable attorney, who regularly practiced in .Brunswick Superior Court, paid him $35 as bis fee; ap*736prised bim of tbe facts, and tbe attorney promised to attend court and look after tbe defendant’s interests, all of wbicb be says was done, and tbe attorney failed to file an answer, and tbe defendant was not in fault bimself, but acted witb ordinary prudence, tbis would constitute excusable neglect. Francks v. Sutton, 86 N. C., 78; English v. English, 87 N. C., 497; Wiley v. Logan, 94 N. C., 564.

Tbe standard of care required of a defendant is tbat wbicb an ordinarily prudent man bestows upon his important business. Roberts v. Allman, 106 N. C., 391. In finding whether such care has been exercised tbe Court will consider, of course, all tbe facts and circumstances of tbe particular case. Tbe attorney was not examined, nor was J. R. Green, tbe creditor, as to tbe allegation of tbe defendant tbat tbe debt bad been satisfied. We do not, though, now decide upon tbe merits, as tbe findings of fact are too meager for tbat purpose. It was stated here and not denied, tbat tbe attorney is insolvent, and therefore defendant has no available remedy against bim for failing in bis duty. It may be tbat all tbe matters will be, hereafter, more fully explained and more clearly stated, and some missing facts supplied. All we now do is to remand tbe case, witb directions tbat tbe court below set aside tbe findings and make new and fuller findings of fact, witb leave to file additional affidavits, if tbe parties are so advised.

We attach no legal importance to what was done at "Wbiteville, N. C. It has no semblance of a judicial' proceeding, but seems to have been merely an informal request, addressed to tbe judge, to set aside. There was no writing, and no record of it was made. It is difficult to understand whether the court refused tbe motion upon tbe ground tbat there bad been a previous adjudication of it, or tbat there was no excusable neglect, or because tbe defense set up was not meritorious. We will not consider tbe merits, though, as injustice may be done if we should do so without all tbe essential facts being before us. Tbe questions as to what constitutes excusable neglect and what is a meritorious defense are discussed in Sircey v. Rees’ Sons, 155 N. C., 296.

Remanded.