Judgments — Excusable Neglect — Meritorious Defense.
Where two parties have signed a contract, jointly, for the purchase of fertilizer, upon the understanding and agreement that each of them would separately be charged with the part he received, but that the joint contract was to enable the shipment to be made in a car-load lot, the purchasers gave their separate notes, and upon demand of seller's attorney for payment and threat of suit, each for his own part said he would not resist judgment, and separate suits are brought, but thereafter consolidated with allegations affecting the personal integrity of the defendants, without the knowledge of either of them, and judgment is accordingly taken, the failure of the defendants to appear and answer is held to be excusable neglect, and a meritorious defense as to each having been shown, the judgment should be set aside.
BROWN, J. (401)
It will be seen from the statement of facts that plaintiff instituted two separate and distinct actions, one against Hearne and the other against Gibson and wife, evidently based upon two distinct and unrelated causes of action, viz., the notes referred to in findings 12 and 13. From the conversation referred to in findings 14 and 15 the defendants were undoubtedly led to believe that the purpose of the two suits was to collect the individual notes of defendants, upon which they were not jointly liable, and that separate and distinct judgments would be taken. That was a reasonable inference to be drawn from the statements of the plaintiff's attorney, and the court finds that defendants did not appear for that reason.
Instead of taking distinct judgments upon the notes against each defendant, the two actions were consolidated without their knowledge and a complaint filed against the defendants jointly, setting up a very different cause of action, and one affecting their personal integrity, upon which judgment was taken by default and the inquiry duly made at a subsequent term.
From the findings of fact it is manifest that the defendants were naturally misled by plaintiff's attorney (whether intentionally or not is immaterial), and thereby prevented from employing counsel and entering appearance. If they were reasonably misled by such conduct, in consequence of which they failed to appear, then it is excusable neglect. Morris v. Ins. Co., 131 N.C. at p. 215.
The judge of the county court has found that defendants were excusable in their neglect, and that they have a meritorious defense, in which judgment we concur.
The judge of the Superior Court erred in reversing order of the county court.
Error.