#### O. L. GODWIN and NEW YORK UNDERWRITERS INSURANCE COMPANY v. FRANK BRICKHOUSE.

(Filed 17 September, 1941.)

Judgments § 32e—

Where the trial court sets aside a judgment by default and inquiry rendered in defendant’s favor upon his counterclaim for want of a reply thereto upon the court’s finding, supported by evidence, that neither plaintiffs nor their counsel have been guilty of neglect, the order setting aside the default judgment will be upheld when it appears that the facts alleged in the complaint, if believed, constitute a meritorious defense, notwithstanding that the trial court failed to make specific finding to that effect.

Appeal by defendant from Stevens, J., at April Term, 1941, of Ttbeell.

Civil action for recovery of property damage allegedly sustained by plaintiff Godwin in an automobile collision as result of negligence of defendant, who in answer filed, copy of which was served on plaintiff Godwin, denies liability and sets up counterclaim for damages growing out of the same collision, which he alleges was caused by the negligence of said plaintiff. In absence of reply to counterclaim, the clerk signed judgment by default and inquiry thereon in favor of defendant. Motion of plaintiff to set aside this judgment was denied by the clerk. Upon appeal, the judge of Superior Court, upon facts found, but without specific finding that plaintiffs have a meritorious defense to the counterclaim, adjudged that neither the plaintiffs nor their counsel have been guilty of neglect, and ordered the judgment set aside and vacated.

Defendant appeals to Supreme Court and assigns error.

J. Henry LeRoy for plaintiffs, appellees.

Carl L. Bailey for defendant, appellant.

*41Per Curiam.

Tbe record discloses evidence to support tbe findings of fact of tbe court below. Furthermore, an examination of tbe complaint discloses that facts are alleged wbicb, if believed, would constitute a meritorious defense. Hence, under authority of Sutherland v. McLean, 199 N. C., 345, 154 S. E., 311, tbe judgment below is

Affirmed.