6 S.E. 790 | N.C. | 1888
The action was placed upon the calendar for trial on a day certain, or as soon thereafter as it could be reached.
Several days previous to that for which this case was set upon the calendar, defendant wrote to his attorney in Asheville to wire him as soon as there was any possibility of the case being reached.
Defendant's attorney, believing that the case would not be reached at all, failed to respond by telegraph to defendant's letter, and defendant did not attend that term of the court.
The case was tried by a jury on the last day for the trial of jury cases, in the afternoon. On the morning of the same day, or on the afternoon of the day before the trial, defendant's counsel asked the presiding judge what disposition had been made of the trial docket; the judge replied, *322 "that the whole of it had been continued, except two little cases to be tried by consent." Counsel for defendant gave the matter no further attention, until he was sent for and notified that the case was (401) called for trial, whereupon he went into court and moved for a continuance, which the presiding judge, after hearing counsel, declined to grant. And the case was tried by a jury.
Defendant has a meritorious defense, if true. On the foregoing facts found, I think, that defendant's negligence was inexcusable; it was his duty to be present at the court on the day set for the trial upon the calendar, and if the case was not reached on that day, to wait its call, or act as advised.
This case having been tried by a jury, the defendant is not entitled to relief under the 274th section of The Code. His remedy was by appeal.
The motion is denied."
Defendant appealed.
Under the former practice, a final judgment rendered in a proceeding at law was beyond the control of the court after the expiration of the term. Moore v. Hinnant,
In Beck v. Bellamy,
If, however, the judge refuses to grant the motion for a supposed want of power, when, upon a proper construction of the statute, he has it, the error may be corrected on appeal, and an opportunity afforded him to determine whether he will exercise it. Hudgins v. White,
These cases all stand upon the ground that the refusal to act proceeded from an alleged want of power, and in this consisted an error in law.
The wrong complained of by the defendant in this case consists in being forced into a trial unexpectedly and unprepared, when this was in consequence of what was said to his counsel by the judge himself, about the cause being continued, or in other words, not allowing a continuance, under the circumstances, to another term. However forcible was this application, it could only be made to the judge who tried the cause, and not to the judge who presided at the succeeding term, and we cannot see how these considerations can enter into and qualify a judgment of necessity following the verdict, as one obtained "through his (the defendant's) mistake, inadvertence, surprise or excusable neglect," and come within the operative provisions of the law.
It is true, the judge holds, the defendant's negligence, in reference to being unprepared for the trial, to be inexcusable, and the inference may possibly be thence drawn that he deemed himself not however invested with power to act in the premises; the record does not so state, not is there any intimation as to what he would do if possessed of the necessary authority, and to be a reviewable case, the refusal should affirmatively appear to have proceeded from the adjudged want of it. As we interpret the case the judge simply ruled irrespective of the question of power. *324 even if he possessed it, it would not be exercised in favor of the defendant on the facts shown in evidence.
If the record be construed as denying the motion because of the absence of authority to allow it, it does not follow that this was based upon a construction of the statute, whether erroneous or not; but it should more reasonably be ascribed to the ruling in Beck v. Bellamy, supra, that the case was not within the statute. However this (404) may be, the act of refusal cannot be assigned for error unless it results from an erroneous ruling. So that he has not exercised a discretion committed to him, and this the case must show.
There is no error, and the judgment is affirmed.
Cited: Flowers v. Alford,