Appeal from superior court, Union county; Adams, Judge.

Action by J. W. Marsh against A. T. Griffin and others. From an order refusing to set aside a judgment by default, defendants appeal. Remanded.

Adams & Jerome, for appellants. Shepherd & Busbee, for appellee.

DOUGLAS, J. This is an appeal from the refusal of a motion, under section 274 of the Code, to set aside a judgment by default obtained through the excusable neglect of the defendants. The action was brought to foreclose a mortgage, and incidentally to compel the vendor of the mortgagor to execute to the feme defendant a good and sufficient deed to the land embraced in the mortgage. The plaintiff does not ask for possession of the land, but asked and obtained, among other relief, a personal judgment against the feme defendant for the admitted debt of her husband. The following is taken from the "case" on appeal as settled by the court:

At

"Judgment was rendered in the above-entitled cause at the August term, 1896, of the superior court of Union county, N. C., as will appear from the record herewith sent. the January term, 1897, of the said superior court, the defendants A. T. Griffin and wife, after giving notice thereof, moved to set aside the said judgment, and filed certain affidavits in support of said motion. The plaintiff filed certain other affidavits, and the defendants rejoined with additional affidavits. The said motion was continued from term to term, and was finally heard at the July special term, A. D. 1898, of the superior court of Union county, N. C., before his honor, Spencer B. Adams, the presiding judge. His honor, after hearing the affidavits of both parties, and the argument of counsel, in the exercise of a sound discretion, refused the said motion, which said refusal was entered upon the docket at the time. After his honor had refused the said motion, the defendants gave notice of appeal, and the usual entries were made, and the amount of appeal bond fixed, all of which will appear from the record herewith sent. The defendants then requested his honor to find the facts upon which he based his refusal, and this his honor agreed to do. It being Saturday of the last day of court, it was agreed by both parties that his honor might find these facts after the expiration of the term, upon statements to be submitted to him by the respective sides. These statements were accordingly submitted, and his honor found the following facts, as being the only facts sufficiently established by the parties, to wit:

at the August term, 1896, upon the ground of excusable neglect, the court finds the following facts: (1) That the defendant E. A. Griffin is, and was at the time of the execution of the mortgage sued upon and the rendition of the judgment, a married woman. (2) That the summons in this case was issued on the 30th day of March, 1896, and duly served on the defendants A. T. Griffin and wife, E. A. Griffin, on the 6th of April, 1896; that the complaint was filed on the 30th day of March, 1896; that the superior court of Union county was held on the second Monday before the first Monday in September, 1896, at which term the judgment complained of was rendered, four and a half months after the service of the summons on the defendants; that on the 4th day of December, 1896, after duly advertising according to law, the land described in the complaint, and embraced in the mortgage that was foreclosed, was publicly sold at the court-house door in the town of Monroe, N. C., at which time and place neither of the defendants entered an appearance nor made a protest against said sale; that no counsel was employed, no bond filed, as was required, it being an ejectment suit, and no action was taken by the defendants, or either of them, until the feme defendant filed her affidavit in this cause, on the 7th day of January, 1897. (3) That during the first week of the August term, 1896, of the superior court of Union county, the defendant Marion [Stegall], who resided in the county of Anson, and who was a nominal defendant merely, passed by and stopped at the residence of the other defendants while on his way to Union court; that while at the house of Griffin and wife, the other defendants, Mrs. Griffin said to Stegall that neither she nor her husband were well enough to go to court, and asked him (Stegall) to look after the matter for them; that the said Mrs. Griffin paid Stegall no money to employ counsel, furnished him with no bond nor means to secure one, and the said Stegall made no promise that he would employ counsel or furnish bond; that the said Stegall had no real interest in the suit, and was merely a nominal defendant; that the said Stegall went on to court, found that the case was not calendared for jury trial, and so reported to the other defendants; that he employed no counsel, gave no bond, made no arrangements to do so, all of which the other defendants well knew. (4) That it is the opinion of the court that it was inexcusable negligence on the part of the defendants Griffin and wife to remain still, and make no effort to put in their defense, from the 6th day of April, 1896, the time of the service of the summons upon them, to the 7th day of January, 1897, the time of the filing of their first affidavit, and to content themselves with simply requesting a nominal defendant who accidentally passed their house, while en route to court, to attend to

the matter for them, without furnishing him with the means to do so; and this is especially so when the said defendant failed to employ counsel or give bond, as Griffin and wife well knew. And, upon the facts found, as herein before set forth, the court refuses, in the exercise of a sound discretion vested in it by section 274 of the Code, to set aside said judgment.

"Spencer B. Adams, Judge Presiding.'

"Exceptions.

"To the said judgment and finding of facts the defendants A. T. Griffin and E. A. Griffin except, and assign the following exceptions and errors: (1) For that there was no evidence that the action was one of ejectment, in which it was necessary for defendants to file bond, but, on the contrary, the complaint discloses plaintiff's cause of action as one for the foreclosure of a mortgage. (2) For that the judge failed to pass upon all the questions of fact raised by the respective parties, and which were necessary for a correct determination of the question of excusable neglect, in that he failed to pass upon and determine: (a) Whether the plaintiff requested the defendant Stegall to come to Monroe and see plaintiff's attorneys about the matter, and whether plaintiff's counsel informed said Stegall that the case was not for trial at that term, and that, if anything was to be done about the case at said term, he would write to Stegall in time and inform him what was to be done; and whether Stegall told Mrs. E. A. Griffin on his return that nothing was to be done about the case unless they were notified. (b) Whether A. T. Griffin and E. A. Griffin were prevented from attending the return term of court, when the judgment was rendered against them, on account of the sickness of A. T. Griffin and the ill health of E. A. Griffin. (c) Whether, under a rule of said court applicable to all cases brought in said court, 60 days were allowed to plaintiffs to file their complaints and 60 days thereafter allowed to defendants to file answers. (d) Whether the plaintiff has taken a personal judgment against the feme defendant, E. A. Griffin, as a simple inspection of the said Judgment will show such personal judgment against her. (3) For that he failed to set aside the personal judgment against the feme defendant, E. A. Griffin, after having found that she was a married woman at the time of the execution of the mortgage sued upon and the rendition of the judgment, and it appearing in the complaint that she was a married woman. (4) For that he erred in not setting aside the judgment upon the facts as found by the court."

The defendants filed several affidavits in support of their motion tending to prove the facts alleged therein.

Upon the foregoing facts we are of opinion that his honor should have found all the material facts, both for the purpose of enabling

him to exercise, in a legal and reasonable manner, the discretion vested in him by law, and to enable us to review his judgment to the extent of determining whether it was within his legal discretion. Section 274 of the Code provides that "the judge may likewise, in his discretion, and upon such terms as may be just, allow an answer or reply to be made, or other act to be done, after the time limited, or by an order to enlarge such time; and may also in his discretion and upon such terms as may be just, at any time within one year after notice thereof, relieve a party from a judgment, order, verdict or other proceeding taken against him through his mistake, inadvertence, surprise or excusable neglect." In the cases construing this section, the words "mistake," "inadvertence," and "surprise" seem to have been ignored with singular unanimity. The phrase "excusable neglect" is apparently taken as embodying the meaning of the section. It has been uniformly held that such a motion rests in the discretion of the court, and yet the result of the decided cases is that such discretion is not reviewable when the judge overrules the motion, but is reviewable when he sustains it. In Stith v. Jones, 119 N. C. 428, 431, 25 S. E. 1022, this court, in reversing the action of the court below in setting aside the judgment, says: "The judge does not

find that there was excusable neglect, nor does he find facts which would justify such conclusion of law. If there was excusable neglect, the judge, in his discretion, might set aside the judgment, or refuse to do so. and the exercise of such discretion is not reviewable,"-citing Simonton v. Lanier, 71 N. C. 498; Brown v. Hale, 93 N. C. 188. "But the discretionary power only exists when excusable neglect has been shown." This rule, which is amply sustained by authorities, can have but one intelligent meaning, and that is that the discretion of the judge is a legal discretion, which must be exercised within legal limits and upon legal principles. The matter is necessarily appealable, so that this court may determine whether that discretion has been legally exercised. If so exercised. It will not be interfered with unless clearly shown to have been abused. Bank v. Foote, 77 N. C. 131; Kerchner v. Baker, 82 N. C. 169; Churchill v. Insurance Co., SS N. C. 205; Wyche v. Ross, 119 N. C. 174, 176, 25 S. E. 878; Cowles v. Cowles, 121 N. C. 272, 275, 28 S. E. 476. It is well settled that a palpable abuse of this discretion is reviewable, and, even where there is no actual or intentional abuse in the ordinary acceptation of the term, a failure to exercise such legal discretion, from a mistake of law or any other cause, is equally reviewable. The defendant is entitled to have his motion fairly heard, his material allegations found one way or the other, and the intelligent and reasonable ex ercise of the legal discretion of the judge upon the facts as found. In Warren v. Harvey, 92 N. C. 137, 139, 141, this court

says: "We have little hesitation in placing the present application within the discretionary power committed to the court, which the judge, holding the neglect not excusable, did not undertake to exercise. * There

was therefore error in the ruling that the facts do not show surprise or excusable neglect within the intent of the statute, and the application must be reheard, to the end that the reasonable discretion confided to the judge may be exercised in the premises, upon the facts as they now appear before us." However incapable of exact definition, that "judicial discretion" is not absolutely without limitation is clearly recognized in other jurisdictions entitled to respect. Lord Mansfield in Rex v. Wilkes, 4 Burrows, 2539, says: "'Discretion,' when applied to a court of justice, means sound discretion, guided by law. It must be governed by rule, not by humor; It must not be arbitrary, vague, and fanciful, but legal and regular." In Tripp v. Cook, 26 Wend. 152, it is said:

"Judicial discretion'

is a phrase of great latitude, but it never means the arbitrary will of the judge. It is always (as Chief Justice Marshall defined it) 'a legal discretion to be exercised in discerning the course prescribed by law. When that is discerned, it is the duty of the courts to follow it. It is to be exercised, not to give effect to the will of the judge, but to that of the law.'"

In the case at bar there is no suggestion of any intentional abuse on the part of his honor, but it clearly appears that, in addition to his failure to find certain facts, he was inadvertent to other material facts. How this inadvertence arose does not appear from the record, but it has been suggested that certain papers were not before him. Whatever its cause, its existence is apparent. He states in his findings of fact that the action is an "ejectment suit," and bases his decision partially upon the fact that the defendant gave no bond. As the pleadings show none of the requisites of an action in ejectment, the defendant was not required to give bond, and therefore the action of his honor was clearly based upon a misapprehension of fact and law. The case must be remanded, as was done in Warren v. Harvey, supra, in order that the application may be reheard and determined in the legal discretion of the court. Upon being remanded, it will stand for hearing as if it had never been heard. Case remanded.

CLARK, J. (concurring in result). On a motion to set aside a judgment for excusable neglect, the findings of fact by the judge are conclusive, and this court cannot look into the affidavits to review his findings (Weil v. Woodard, 104 N. C. 94, 10 S. E. 129; Albertson v. Terry, 108 N. C. 75, 12 S. E. 892; Sikes v. Weatherly, 110 N. C. 131, 14 S. E. 511); and, Indeed, they are no part of the record proper, and should not be sent up. Whether, upon the findings of fact, there was excusable

case.

or inexcusable negligence, is a matter of law, and always reviewable at the instance of elther party. Winborne v. Johnson, 95 N. C. 46; Weil v. Woodard, supra; Clark's Code (2d Ed.) pp. 230-233. If, upon such findings of fact, the negligence was inexcusable, the court below had no power to set the judgment aside. If there was, upon such findings, excusable negligence, then the judge, in his discretion, can set aside, or refuse to set aside, the judgment, and the exercise of such discretion is irreviewable, at the instance of either party (Manning v. Railroad Co., 122 N. C. 824, 28 S. E. 963; Stith v. Jones, 119 N. C. 428, 25 S. E. 1022; Sikes v. Weatherly and Winborne v. Johnson, supra, and cases there cited), except, possibly, for a gross abuse of discretion (Wyche v. Ross, 119 N. C. 174, 25 S. E. 878), which does not appear in this There was no omission to find material facts, as in Smith v. Hahn, 80 N. C. 241, for his honor says the facts found are "the only facts sufficiently established by the parties," and the credit a judge gives to the testimony of witnesses cannot be supervised by an appellate court. But, while we cannot look into the affidavits to review the findings of fact, we see that his honor found that there was "no bond filled as was required, it being an ejectment suit"; when from the record proper it appears that the action was not an ejectment suit, but for foreclosure, and no bond was required. The Judge below evidently found that this was a case of excusable neglect (as he refuses the motion in the exercise of his discretion), and, as the plaintiff does not appeal, that finding stands. But it is impossible to see how far the exercise of his discretion was influenced by the erroneous opinion the judge expressed as to the nature of the action and the necessity of filing a bond. I think the case should be remanded, that the Judge below exercise his discretion upon the facts already found.

(123 N. C. 623)

FEATHERSTON ▼. WILSON et al. (Supreme Court of North Carolina. Dec. 23, 1898.)

NONSUIT-DISCRETION OF COURT-EVIDENCE.

Under Acts 1897, c. 109, providing for motion for nonsuit at the close of plaintiff's evidence, the court has discretionary power to hear further evidence from plaintiff, without passing on the motion for nonsuit.

Appeal from superior court, Buncombe county; Hoke, Judge.

Action by Clara Featherston against Samantha Wilson and others. There was a judgment for plaintiff, and defendants appeal. Affirmed.

Merrimon & Merrimon, for appellants. A. S. Barnard, for appellee.

FAIRCLOTH, C. J. This is the fifth time this case has come before this court. See 118 N. C. 840, 24 S. E. 714; 119 N. C. 588, 26 S.

E. 155; 120 N. C. 446, 27 S. E. 124; 122 N. C. 747, 30 S. E. 325,-where the facts and history of the whole matter will be found. It was held by this court (119 N. C. 588, 26 S. E. 155) that under the trust deed of John Wilson, husband of defendant and father of plaintiff, the wife and children were tenants in common in the trust estate. The plaintiff is the only surviving child, and owns twothirds and the defendant one-third of said estate. At the last trial, now here for review, the plaintiff, demanding her two-thirds of the net profits, rents, etc., in the hands of the trustee, introduced her evidence and rested her case. The defendant moved to nonsuit the plaintiff under Act 1897, c. 109. The plaintiff asked permission to introduce other and further evidence, which was allowed by the court, and the defendant excepted. Plaintiff introduced further evidence, and rested again. Defendant renewed the motion for nonsuit under the act of 1897, which was refused, and the defendant again excepted. Defendant then introduced evidence, and the case was tried by the court and jury. The issues were found in favor of the plaintiff, and judgment was entered declaring that the plaintiff was entitled to two-thirds of the rents and profits in fee, and defendant to one-third during her life and remainder to the plaintiff. Appeal by defendant. This recital presents all the facts necessary to the consideration of the real question before us.

The question is, when the defendant first moved for nonsult was it the imperative duty of the court to pass upon the legal question presented by the motion under said act of assembly, or had he the discretionary power to hear further evidence from the plaintiff against defendant's objection. The court has held in Purnell v. Railroad Co., 122 N. C. 832, 29 S. E. 953, and other cases, that the motion for nonsuit, under Act 1897, c. 109, is a demurrer to the evidence, and the defendant, by noting his exception, preserves his right to have the motion passed on on appeal, although he proceeds to trial with his evidence, contrary to the former practice. Said act of 1897 seems to give the defendant two chances,-(1) With the court; (2) with the jury,-but it gives no direction on the practice or procedure under its provisions. We have discovered nothing in the Code or in any other statute changing the long-established rules of practice in our courts, and, unless some statute is found inconsistent with the former practice and procedure, that system is still the rule. Insurance Co. v. Davis, 74 N. C. 78. While the Code dispenses with the formal mode of commencing actions and of pleading, it does not dispense with the rules for conducting trials heretofore established, as essential to the administration of law. By a demurrer to the evidence, the case is put upon the sufficiency of the evidence, which means the exitus issue or end of the case, and, strictly speaking, no issue of law is raised until the opposing party joins therein. Co. Litt. 71b. In the case we

have, there was no joinder in demurrer, but the plaintiff moved for and obtained leave to give further evidence. We do not care, however, to put the case on this strict technical point of pleading. Under the former rules of practice and procedure, had the court the power to receive other evidence on motion of the plaintiff, after the defendant's motion for a nonsuit, as by demurrer, under Act 1897, c. 109? We find, by former decisions, that he had the power in the exercise of his discretion. In Kelly v. Goodbreed's Ex'rs, 4 N. C. 468, it is held: "After the testimony in a cause is closed, the introduction of other witnesses is a matter within the sound discretion of the court." Parish v. Fite, 6 N. C. 253, says: "The court may, in its discretion, permit new witnesses to be introduced and examined before the jury after the argument of counsel is closed;" but it ought not to be done except for good reasons shown to the court. In Barton v. Morphis, 15 N. C. 240, the ruling is that the refusal of the court to permit a witness to be re-examined is no ground for a new trial, it being discretionary with the court to permit it or not. State v. Rash, 34 N. C. 382: "In criminal, as well as civil, cases, all the testimony on both sides should be introduced before the argument commences. After that, the parties have no right to introduce additional testimony, though the court, in its discretion, may permit it to be done:" This rule will be found in later cases. The argument made is that if the above rule of practice prevails, it destroys Act 1897, c. 109. Not necessarily so: for, if the judge refuses to hear other evidence, the defendant puts to the test the strength of the plaintiff's case on which he rested. The charge of the court is very full. and seems to cover the material parts of the defendant's prayers for special instructions. The hardship of the result to the defendant was referred to in the argument, but, whatever we might think of that, we are not authorized to express any opinion about it. Affirmed.

(123 N. C. 628)

ERWIN et ux. v. BAILEY et al. (Supreme Court of North Carolina. Dec. 23, 1898.)

DEPOSITIONS-WAIVER-BASTARDS-REPUTATIONEVIDENCE-COMPETENCY-JURY.

1. Where opposing parties were present at taking of depositions, and examined the witnesses, they cannot complain that the notice on which they were taken did not state the title of the case correctly.

2. On the issue of the legitimacy of a child of slave parents, evidence that the father at one time was permitted by his master to take an other wife, but afterwards returned to the mother, and lived with her as man and wife. was properly excluded; the child not having been begotten during the time that the father was living with the other woman.

3. General reputation that one was not the child of her alleged father is inadmissible on the ques tion of legitimacy, and this though the parents

were slaves, since they were declared man and wife under Acts 1866, c. 40, § 5.

4. On the issue of legitimacy, the fact that the parents frequently quarreled about the child, the father claiming it was not his, was improperly excluded.

5. Where the issue was a child's legitimacy, and there was evidence of nonaccess, and that the parents frequently quarreled about the child, the father claiming it was not his, it was a case for the jury.

Appeal from superior court, Buncombe county; Hoke, Judge.

Action by Albert Erwin and wife against L A. Bailey and others. There was a judgment for plaintiffs, and defendants appeal. Reversed.

Ejectment.

The land sued for was admitted to have belonged to Cæsar Swinton, who died before suit was brought. Caroline Erwin, the feme plaintiff, claimed one-third of the land as heir at law of Cæsar Swinton; and defendants Hester Bailey and one other (two children and heirs at law of Cæsar Swinton) answered, claiming the entire interest in the land,-alleging that Caroline was not the child of Swinton. Plaintiff offered depositions of Susan Cochran and Henry Vanderhost. These depositions had been opened by consent, under an agreement that any objection thereto might be made and passed upon at the trial. Defendants objected to reading such depositions on the ground that the notices were entitled "Alfred Erwin and Wife vs. Ella Bailey et al," whereas the true title of the cause was "Erwin & Wife against L. A. Bailey and Hester Bailey et al." It appeared that defendants had been duly served with a notice, entitled "Alfred Erwin and Wife vs. Ella Bailey et al.," giving correct time and place where the depositions were taken, and defendants had filed cross interrogatories at the taking of the same, which were answered, and that no objection to taking them had been made at the time they were taken. The court overruled the objection, and allowed the plaintiff to amend the notice so as to properly entitle the notice, and allowed the depositions to be read. Defendants excepted. These depositions, with other evidence of plaintiff, tended to show that Swinton and Catherine Swinton, mother of plaintiff and of defendants, were slaves belonging to Frank Johnston; that during the war, and before, Cæsar and Catherine lived together as man and wife, after the manner of slaves, and while they so lived together Catherine gave birth to Hester Bailey and Caroline Erwin, and another child, who is also a defendant; that Hester and Caroline were born during slavery, and it did not appear when the last child was born, but at some period while Cæsar and Catherine lived together as man and wife; that they were thus living together at the surrender, and thereafter moved to North Carolina, where they continued to so live till the death of Catherine, in 1868 or later; that they never went before the clerk or justice and made

acknowledgment of their marriage, as required by the act of 1866, c. 40, § 5; that Cæsar Swinton bought the land now sued for; that he and Catherine are both dead, and the parties now claim the land as his children and heirs at law. To prove that plaintiff Caroline was not the child of Cæsar, the defendants introduced Mrs. Lelia Coffin, who testified that Cæsar and Catherine were slaves belonging to her father, Frank Johnston, and that Catherine was her mother's maid, who came with the family every summer to Flat Rock, N. C., and that Cæsar remained on the rice plantation in South Carolina; that the family came to North Carolina about the 1st of May, and went back to South Carolina about the latter part of November, and Caroline was born about a month after the family had come to Flat Rock, some time during the war. The witness was further questioned about that date, and stated that the family were in the habit of coming up the 1st of May, and went back the last of November, and that Caroline was born within a month after the family moved up to Flat Rock for the summer. The defendants offered to show by this witness that it was the general reputation in her father's family that Caroline was not the child of Cæsar Swinton, but of her father's coachman. Plaintiff objected. Objection sustained, and defendants excepted. Defendants offered to show by this witness and others that both Cæsar and Catherine were heard to say, while they lived together as aforesaid, that Caroline was not the child of Cæsar. Plaintiff objected. Objection sustained, and defendants excepted. Defendants further offered to show that it was the general reputation in Cæsar's family that Caroline was not the child of Cæsar. Plaintiff objected. Objection sustained, and defendants excepted. Defendants further offered to prove that while Cæsar and Catherine were thus living together they had constant quarrels about Caroline not being Cæsar's child. Plaintiff objected. Objection sustained, and defendants excepted. Defendants offered evidence to show that Cæsar became dissatisfied with his wife's being in the mountains, and asked his owner, Frank Johnston, to let him take another wife, and he gave his permission, and Cæsar did take another woman, and lived with her as his wife till Catherine went back, and Catherine took on so about it that Cæsar gave up the new wife, and renewed his relations with Catherine, which continued till the surrender, and afterwards, as above set forth. This interruption of Cæsar's relation with Catherine was not during any period when Caroline was begotten or born; nor were any declarations of Cæsar or Catherine, tending to make Caroline illegitimate, shown to have been made while their relations were so interrupted. Defendants further offered Dr. Glenn as a witness, who testified that the ordinary and natural period of pregnancy was nine months; that children were born at sev