Finlayson v. American Accident Co. of Louisville
13 S.E. 739
N.C.
1891
Check Treatment
Clabk, J.:

The defendant, who was not present at the trial before the Justice of the Peace “in person or by attorney,” moved, within ten days, to set aside the judgment for excusable neglect under § 845 of The Code. The Justice found, as a fact, there was no excusable neglect or mistake on the part of the defendant, who thereupon excepted and appealed. In the Superior Court the Judge found the facts as sent up in the case on appeal, and affirmed the ruling of the Justice.

The findings of fact by the Justice are reviewable by the Judge of the Superior Court on appeal, while findings of fact by the Judge (except in injunctions and in similar cases) are not subject to review by this Court. The reason for the distinction is pointed out in Deaton’s case, 105 N. C., 59. We are, therefore, bound by his Honor’s findings of fact, and can only consider whether in law they constitute excusable neglect. Clegg v. Soapstone Co., 66 N. C., 891; Powell v. Weith, 66 N. C., 423; Jones v. Swepson, 79 N. C., 510.

In this case it was found, as a fact, that on the return day of the summons the defendant’s local agent appeared and procured a continuance for ten days; but, notwithstanding, it did not employ counsel till so late that though he “immediately wrote to local counsel in Goldsboro” (where the cause was tried), the letter was received a half hour after the time set for the trial. This was inexcusable neglect. Nor is there any force in the objection that the Judge declined to find *200 that the general agents of the defendant company understood that they had retained said counsel a week previously, for, even if it be admissible for such an excuse to be set up, they certainly knew of the misunderstanding when they had the second interview with their counsel, and it was negligence not then to telegraph, which would have secured local counsel in ample time, instead of trusting to the slower movement of the mail. Then, too, the local agent in Goldsboro, who appeared on the return day and procured the continuance, when he found his company unrepresented at the trial, should have employed counsel, or, at least, have asked a short delay to telegraph the general agents. Besides, take it most strongly for the defendant that the agents in Raleigh not only understood they had, but actually had, employed counsel in Raleigh a week before, as he wa,s not to appear in the case himself, but merely to employ local counsel in Goldsboro, the scope of his employment pro hac vice was not professional, but that of a mere agent, being a duty which they could have performed themselves, and his negligence was the negligence of the company (Churchill v. Ins. Co., 92 N. C., 485; Griffin v. Nelson, 106 N. C., 235; Boing v. R. R., 88 N. C., 62), and would not excuse. In fact, however, the Judge does find that, subsequent to the alleged first interview with counsel in Raleigh, and three days before the trial, one of defendant’s general agents saw the plaintiff, mentioned the date set for the trial, and stated that they themselves would write to counsel in Goldsboro to represent the defendant. Litigation is a serious matter. When a party has a case in Court the best thing he can do is to attend to it. The very perfunctory attention which was given by the defendant, or its agents, in the present case is not of such a nature as to call for the interposition of a Court.

The point is also suggested that the defendant appealed from the judgment on the merits, as well as from the judgment refusing the motion to set aside the judgment. But *201 if so, it should be made to appear that the appeal was taken within the ten days after such judgment was rendered. Spaugh v. Boner, 85 N. C., 208; The Code, § 876. The record does not disclose such fact, but merely that the motion to set aside the judgment was refused and an appeal taken, presumably from the judgment refusing the motion. If, in fact, the appeal was from the judgment on the merits, the appellant should have applied to the Justice of the Peace to have had it so stated, or have served his notice of appeal stating it, and within the time prescribed by law, and the burden was on him to show this. On the contrary, it appears from “ the case on appeal” that the appeal was treated in the Superior Court solely as an appeal from the refusal of the motion to set aside, and it recites the judgment before the Justice, the motion to set it aside and re-open the case, its refusal, and that “from the refusal to re-open said case the defendant appealed to the Superior Court.” Had there been an appeal within ten days on the merits, the trial in the Superior Court would have been de novo, and there would have been no point in the contest whether the Justice should have set aside the judgment.

While in case of a disagreement between the record proper and the “case on appeal,” the former governs (State v. Keeter, 80 N. C., 472; Adrian v. Shaw, 84 N. C., 832), there is, as we have said, nothing in the record to show clearly that there was an appeal from the judgment on the merits, and nothing at all to indicate that if it was, that such-appeal was taken within the prescribed time. The Code, § 876. However the fact may be, we are restricted to what appears in the transcript. The presumption is always in favor of the correctness of the judgment below, and the burden is on the appellant to show error. This we do not think he has done.

Affirmed.