Bundy v. Ayscue

171 S.E.2d 1 (1969)

276 N.C. 81

William W. BUNDY v. Will AYSCUE (Askew) and James R. Walker, Jr., Guardian ad Litem.

No. 39.

Supreme Court of North Carolina.

December 10, 1969.

*2 W. H. Oakey, Jr., and Silas M. Whedbee, Hertford, for plaintiff.

James R. Walker, Jr., for defendant and Guardian ad Litem.

*3 BRANCH, Justice.

Defendant appeals to this Court under provisions of G.S. § 7A-30(1), contending he was denied his constitutional rights as secured by Article I, Section 17, of the North Carolina Constitution, and the Fourteenth Amendment to the United States Constitution, in that he was denied a jury trial as to his mental capacity at the time of the filing of the original suit, its trial, and during the pendency of this motion. Defendant also contends that he was denied right of jury trial and the right to confront witnesses at the original trial.

In the case of State v. Colson, 274 N.C. 295, 163 S.E.2d 376, this Court considered the right of a party to appeal, as a matter of right, from a decision of the Court of Appeals to the Supreme Court under G.S. § 7A-30(1), and stated:

"* * * we hold that an appellant seeking a second review by the Supreme Court as a matter of right on the ground that a substantial constitutional question is involved must allege and show the involvement of such question or suffer dismissal. The question must be real and substantial rather than superficial and frivolous. It must be a constitutional question which has not already been the subject of conclusive judicial determination. Mere mouthing of constitutional phrases like `due process of law' and `equal protection of the law' will not avoid dismissal. Once involvement of a substantial constitutional question is established, this Court will retain the case and may, in its discretion, pass upon any or all assignments of error, constitutional or otherwise, allegedly committed by the Court of Appeals and properly presented here for review."

It must be borne in mind that this is an appeal from an order denying defendant's motion to set aside a judgment on the grounds of mistake, surprise or excusable neglect. The order was entered four months after filing of the motion, and defendant was represented by the same counsel in every phase of the pending motion from the date it was filed until the order was entered. This was not an inquisition of lunacy as provided by Chapter 35 of the General Statutes, and the mental condition of defendant was only a matter of evidence to be considered by the trial judge in finding facts and reaching conclusions of law as to the disposition of the motion before him.

A motion to set aside a former judgment on the grounds of mistake, surprise or excusable neglect is addressed to the court, and questions of fact arising on the motion are for the court and are not issues of fact for the jury. Coker v. Coker, 224 N.C. 450, 31 S.E.2d 364; Cleve v. Adams, 222 N.C. 211, 22 S.E.2d 567.

An examination of this record leads us to conclude that defendant has failed to show that a substantial constitutional question is involved in this appeal, and the appeal must be dismissed. However, since this appeal indirectly affects an important property right, we have closely reviewed and considered the well-reasoned opinion of Parker, J., speaking for the North Carolina Court of Appeals, and find it to be free from error.

Appeal dismissed.

MOORE, J., took no part in the consideration or decision of this case.