{ "id": 8627984, "name": "WILLIAM S. FRANKS v. JOHN JENKINS", "name_abbreviation": "Franks v. Jenkins", "decision_date": "1958-01-10", "docket_number": "", "first_page": "586", "last_page": "587", "citations": [ { "type": "official", "cite": "247 N.C. 586" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "72 S.E. 2d 849", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "236 N.C. 348", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625539 ], "opinion_index": 0, "case_paths": [ "/nc/236/0348-01" ] }, { "cite": "90 S.E. 2d 749", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "243 N.C. 380", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625087 ], "opinion_index": 0, "case_paths": [ "/nc/243/0380-01" ] } ], "analysis": { "cardinality": 244, "char_count": 3820, "ocr_confidence": 0.567, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.20729084977541162 }, "sha256": "802ed0a52b27f5e460a130db344a905690b04100fed71678842efafadd6120df", "simhash": "1:a46585c84238ed4f", "word_count": 620 }, "last_updated": "2023-07-14T22:38:17.459804+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "WILLIAM S. FRANKS v. JOHN JENKINS" ], "opinions": [ { "text": "Per Curiam.\nThe findings of fact established (1) a meritorious defense, and (2) inexcusable neglect. Hence, defendant\u2019s motion was properly denied. Sanders v. Chavis, 243 N.C. 380, 90 S.E. 2d 749.\nAffidavits offered by defendant provided the only information before the court as to what occurred in New York after the court papers were served on defendant on April 12, 1957. The court was not obliged to accept as true each and every statement of fact set forth in these affidavits.\nUnquestionably, the court\u2019s findings of fact, which are supported by competent (defendant\u2019s) evidence, support the court\u2019s legal conclusion and judgment.\nDefendant\u2019s liability insurance carrier is not a party to this action. Its neglect is relevant herein only to the extent it may be imputed to the defendant. Stephens v. Childers, 236 N.C. 348, 72 S.E. 2d 849. Hence, the findings of fact relating thereto are not determinative of the rights and liabilities of defendant and his liability insurance carrier inter se. Sanders v. Chavis, supra.\nBy amendment to its motion, defendant asserts that since service was made under G.S. 1-105, G.S. 1-108 entitles him to have the judgment set aside and to defend the action on its merits. But G.S. 1-108, in respect of relief after judgment, applies only when the service is by publication. As to service on defendant in accordance with G.S. 1-105, this statute provides that such service \u201cshall be of the same legal force and validity as if served on him personally.\u201d\nAffirmed.", "type": "majority", "author": "Per Curiam." } ], "attorneys": [ "Sanders & Holt for plaintiff, appellee.", "Smith, Moore, Smith, Schell & Hunter for defendant, appellant." ], "corrections": "", "head_matter": "WILLIAM S. FRANKS v. JOHN JENKINS\n(Filed 10 January, 1958.)\n1. Judgments \u00a7 27a\u2014\nOn motion to set aside d judgment under G.S. 1-220 on the ground of mistake, inadvertence, surprise and excusable neglect, the trial court\u2019s finding, upon supporting evidence, that the neglect was not excusable, is binding, notwithstanding contrary averments in affidavits offered by defendant, the court not being obligated to accept as true each and every statement of fact set forth therein.\n2. Same\u2014\nOn motion to set aside judgment for surprise and excusable neglect under G.S. 1-220, the neglect of defendant\u2019s liability insurance carrier is relevant only to the extent it may be imputed to defendant, and the findings of fact relating thereto are not determinative of the rights and liabilities of defendant and his insurance carrier inter se.\n3. Same: Process \u00a7 10\u2014\nService on a nonresident automobile owner under G.S. 1-105 has the same legal force as personal service, and a defendant so served is not entitled to have a default judgment against him set aside and to defend the action on its merits under G.S. 1-108.\nAppeal by defendant from Williams, \u2022/., July 29, 1957, Regular Civil Term, Alamance.\nPlaintiff, a resident of Alamance County, North Carolina, seeks to recover damages alleged to have been caused by the negligence of defendant, a resident of New York City. The action, instituted April 9, 1957, grows out of an automobile collision in Davidson County, North Carolina, on September 12, 1956.\nService was made on defendant in accordance with G.S. 1-105, defendant having received (by mail) on April 12, 1957, in New York City, a copy of the summons and of the complaint.\nJudgment by default and inquiry was signed June 12, 1957.\nDefendant\u2019s copy of the summons and of the complaint were delivered to North Carolina (Greensboro) counsel on June 17, 1957, with instructions to act in behalf of defendant.\nThe hearing was on defendant\u2019s motion under G.S. 1-220 to set aside said judgment on the ground of mistake, inadvertence, surprise and excusable neglect.\nJudge Williams\u2019 judgment, which includes his findings of fact and conclusions of law, denied defendant\u2019s said motion. Defendant excepted and appealed.\nSanders & Holt for plaintiff, appellee.\nSmith, Moore, Smith, Schell & Hunter for defendant, appellant." }, "file_name": "0586-01", "first_page_order": 628, "last_page_order": 629 }