Hunter v. Atlantic Coast Line Railroad

*505 Hoee, J.

While it is held with us that, in proceedings of this nature, and in merely formal matters, such as the giving of notice, etc., a reviewing court is allowed a very wide discretion (S. v. Johnston, 109 N. C., 852 ;

R. R. v. Richardson, 82 N. C., 343 ), our decisions also hold that an order granting a writ of recordcuri to a justice’s court and directing that a cause be set down for trial de novo rests in the sound discretion of the court, and is one from which an appeal presently lies. 3 Clark’s Code Procedure, sec. 545, citing among other cases, Barnes v. Easton, 98 N. C., 116 ;

Perry v. Whitaker, 71 N. C., 102 . Authority with us, too, seems to require that, in making an order of this character, the judge should find and declare the facts upon which he bases his judgment.

Collins v. Collins, 65 N. C., 135 . But assuming that the court intended to adopt and approve the facts as contained in the affidavit of counsel, and that the facts contained therein make out a case of excusable neglect, we are of opinion that the order granting the writ in this instance is erroneous by reason of the utter failure to state or suggest facts showing or tending to show any meritorious defense to plaintiff’s demand. This is sometimes dispensed with where the litigant has been misled by the action of the justice of the peace (S. v. Warren, 100 N. C., 489 ); but where, as in this case, the failure to appear was owing to the conduct of the party himself or his attorney, excusable or otherwise, it is essential to show or properly aver a meritorious defense before the action of the justice will be disturbed.

Pritchard v. Sanderson, 92 N. C., 41 ;

S. v. Griffis, 117 N. C., 714 ;

McKenzie v. Pitner, 19 Texas, 135 ;

Chicago Stamping Co. v. Danly, 85 Ill. App., 322 .

As heretofore stated, there are no facts set forth in the affidavit submitted which show or tend to show that defendant had any valid defense to plaintiff’s demand, and, on authority, in the absence of such showing, the order granting the writ was erroneous. This will be certified, that the same be set aside.

Error.