#### GEORGE L. SPELL v. L. C. ARTHUR.

(Filed 1 November, 1933.)

Judgments Iv b—

Tbe findings of fact by tbe court below beld sufficient upon a liberal interpretation to support tbe court’s order setting aside the judgment for surprise and excusable neglect under O. S., 600.

Appeal from Gracly, J., at March Term, 1933, of Pitt.

Affirmed.

At May Civil Term, 1932, of Pitt Superior Court, plaintiff obtained a verdict and judgment against tbe defendant. Tbe issues submitted to tbe jury and their answers thereto were as follows:

“1. Did tbe defendant, through false and fraudulent representation, procure, collect and receive of tbe plaintiff payments on a bouse and lot as alleged, with tbe intent to cheat and defraud tbe plaintiff of tbe same? Answer: Yes.

2. In what amount is tbe defendant indebted to tbe plaintiff by reason and on account of tbe said payments? Answer: $550.00, with interest from 1 January, 1930.”

On 16 September, 1932, after execution was issued against tbe property and returned unsatisfied and then against the person of defendant, *406in accordance with the judgment at May Term, 1932, notice was served on .plaintiff and bis attorney by defendant tbat be would move before “bis Honor, Clayton Moore, judge of Superior Court, on 26 September, 1932, at 2 :30 o’clock p. m., at Greenville, N. C., to set aside and vacate the judgment heretofore signed and entered in this action, upon the grounds set out in the attached motion and affidavit.”

The matter came on for hearing before Grady, J., at March Term, 1933, Pitt Superior Court. It was agreed that the judge find the facts and render judgment. The facts were found by the judge and are set forth in the record, and the following order was made: “Ordered and adjudged that the judgment and verdict in this case, which were entered at May Term, 1932, be and the same are hereby set aside, and defendant is permitted to file answer according to his prayer.”

The plaintiff excepted and assigned error on the grounds that the court did not find (1) excusable neglect, (2) under the facts found, defendant was guilty of gross negligence and indifference to the process of the court, (3) there was no finding that defendant had a meritorious defense, (4) to the judgment as signed, that on the whole record the court could not set the judgment aside.

8. J. Everett for plaintiff.

Harding & Lee for defendant.

Per Curiam :

The defendant moved to set aside the judgment on the ground of excusable neglect, C. S., 600. From a liberal interpretation of the findings of facts by the court below we think all necessary facts were found upon which in law to base the order of the court below that the verdict and judgment be set aside.

The judgment of the court below is

Affirmed.

Stacy, C. J., dissents.