{
  "id": 8682167,
  "name": "THE BANK OF STATESVILLE v. JAMES H. FOOTE and another",
  "name_abbreviation": "Bank of Statesville v. Foote",
  "decision_date": "1877-06",
  "docket_number": "",
  "first_page": "131",
  "last_page": "133",
  "citations": [
    {
      "type": "official",
      "cite": "77 N.C. 131"
    }
  ],
  "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": "71 N. C. 498",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        11278850
      ],
      "opinion_index": -1,
      "case_paths": [
        "/nc/71/0498-01"
      ]
    }
  ],
  "analysis": {
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    "char_count": 4184,
    "ocr_confidence": 0.412,
    "pagerank": {
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    "simhash": "1:48353d8b37e2e100",
    "word_count": 744
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  "last_updated": "2023-07-14T20:46:21.915598+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "THE BANK OF STATESVILLE v. JAMES H. FOOTE and another."
    ],
    "opinions": [
      {
        "text": "Bynum, J.\nThe application for relief under the provisions of C. C. P. \u00a7 133, is addressed to the discretion of the Judge presiding below. His action is not the subject,of review here unless it plainly appears that he has abused the legal discretion vested in him. Nothing of the kind is shown in this case. The affidavit of the defendant Foote is not sustained by the facts as found by the Court. On the contrary it appears .that Foote accepted the service of the summons and waived all irregularities in the service and acted accordingly. It is true he did not appear and defend at the return term, but he knew and acted upon the fact that it was necessary and required, for he had an interview with his co-defendant in which he left the management of the case to Cook. It does not appear that either Cook or Foote had a meritorious defence to the action; therefore Cook made the best terms he could with the plaintiff, and allowed judgment to be taken upon certain terms of indulgence in enforcing its collection. He doubtless deemed that the most prudent and beneficial course in the interest of himself and his co-defendant. The only defence Foote now alleges to a recovery is usury. But that is certainly not a meritorious defence and is\u2019 deprived of all significance by the action of the Judge who'reformed the judgment by striking from it all the interest which was alleged to be usurious. That the principal money was borrowed of the plaintiff is not denied, and all that the judgment has been\u2019 rendered for is the debt with legal interest. Eoote had the right to appear at the return term and put in the plea of usury and make the plain tiff take the consequence of his making the plea good upon the trial. Instead of this, he entrusted the case to an agent, his co defendant, without any instructions as to the defence. The agent acted within the scope of his powers ; and even had he not done so, the defendant Eoote must have shown some injury he has received or some meritorious defence of which he has been deprived. He has not alleged either.\nThere is no error.\nPer Curiam. Judgment affirmed.",
        "type": "majority",
        "author": "Bynum, J."
      }
    ],
    "attorneys": [
      "No counsel for plaintiff'.",
      "Mr. JR. F. Armfield, for defendants."
    ],
    "corrections": "",
    "head_matter": "THE BANK OF STATESVILLE v. JAMES H. FOOTE and another.\nPractice \u2014 Vacation of Judgment \u2014 Discretionary Power.\nThe action of the Court below, upon an application for relief under O. 0. P. \u00a7 133, is not reviewable. unless it plainly appears that the legal discretion vested in the Court has been abused.\nMotioN to set aside a Judgment heard at Chambers in Statesville on the 10th of July, 1876, before Furches, J.\nThe judgment which the defendants seek to vacate was rendered against James Ii. Eoote and his co-defendant, C. L. Cook, at Eall Term, 1875, of Iredell Superior Court, upon a, note made by Cook as principal and Eoote as surety.\nThe material facts are as follows : The Sheriff went to\u2019 Foote\u2019s house to serve the summons in the original action,, and Fopte being absent, he left a written notice to be delivered to him on his return. This notice was not a copy of the summons issued by the Clerk, but the Sheriff afterwards delivered a copy of the summons to Foote, and remarked, that he should have left the summons instead of the notice at his house. Foote replied, that he had the notice, and said* if there was anything wrong in his (Sheriff\u2019s) return, he would waive it. After this service upon Foote, he wi'ote'to his co-defendant, Cook, reminding him of his promises \u2014 that he should not be troubled about the debt \u2014 and informing Mm that lie would not go to Court, but for him, (Cook) to attend to the matter, and not let judgment be taken against Mm. Thereupon Cook employed an attorney who prepared a joint answer for the defendants. After the answer was written, Cook agreed with the plaintiff Bank not to file it, and let judgment be taken, the Bank agreeing that no execution should issue until Spring Term, 1876, and giving defendants the opportunity of paying the debt by installments.\nUpon these facts, His Honor refused to set aside the judgment, but reformed the same by reducing the interest to 8 percent per annum, (see SimontonY. Lanier, 71 N. C. 498), and the defendants appealed.\nNo counsel for plaintiff'.\nMr. JR. F. Armfield, for defendants."
  },
  "file_name": "0131-01",
  "first_page_order": 145,
  "last_page_order": 147
}