95 S.E. 914 | N.C. | 1918
CLARK, C. J., dissenting. This is a motion to set aside a judgment on the ground of excusable neglect. The judge found the facts, and among others that the defendant has a meritorious defense. The motion was allowed, and the plaintiff excepted and appealed. The summons was served on the defendant on 6 October, 1916, but the complaint was not filed until 9 January, 1917, three months later, although due at the October Term of Court.
The answer, which denied the plaintiff's cause of action and alleged a counterclaim, was filed 23 January, 1917, twelve days after the complaint, and the reply on 9 February, 1917, seventeen days after the answer.
The reply was filed during a term of court which began 5 February, 1917, and the action was set for trial 12 February, 1917, three days after issue joined.
It thus appears that the defendant had the opportunity to move to dismiss the plaintiff's action for failure to file complaint within the statutory time, and to move for judgment on his counterclaim at the beginning of the February term for want of a reply.
The attendance of the defendant and its counsel on 12 February could not reasonably be expected, nor could a trial be anticipated when the filing of the reply was delayed until after the term of court began, and this is not urged as negligence.
The judge who presided at the February term saw and appreciated the situation, and he directed that the trial be postponed and *545 the cause set for hearing on 14 March, 1917, and that the defendant (513) be notified of his order.
No notice was sent to the defendant except a copy of the calendar was mailed to counsel as second-class matter, and was overlooked, and the action was tried on 14 March in the absence of the defendant and his counsel.
If these facts show negligence on the part of counsel, it consists in failure to examine a court calendar sent to him as a circular, which frequently finds its way to the waste basket without being read, or because he did not make inquiry as to the status of the action during a period of thirty-three days elapsing between the filing of the reply and the date of the trial, when in the regular course of the docket and in the absence of the order advancing it ahead of other cases, it would not have been reached for trial until six or eight months later. The twelfth and thirteenth findings of fact are:
"That defendant's counsel knew that the civil issue docket of Mecklenburg County was congested, independently of what plaintiff's counsel wrote them; that in the ordinary course it would take about a year from the time action was brought to secure a trial in its regular order. Defendant's counsel were of the impression that plaintiff's counsel had agreed to notify them when the case would be called, but the court finds that there was no such definite agreement.
"This case was placed on the calendar and tried ahead of many other cases on the civil issue docket in this county which were instituted before it was, and if they had been tried in their regular order this case would not have been called for trial until some time later than the last February Term, 1917."
If, however, the negligence of counsel is established, this is not sufficient reason for denying relief to the defendant, since it has been held in numerous cases that the negligence of counsel in the performance of professional duties will not be attributed to the client. Griel v. Vernon,
In the Cottingham case, Walker, J., says: "The distinction between the negligence of counsel while engaged in the performance of a professional duty and the negligence of the party is clearly marked, and the uniform rule with us is that the negligence of the first will not be attributed to the client, if he himself is in no fault; and this is true without regard to the solvency or insolvency of counsel. Schiele v. Ins. *546
Co.,
It is true that in nearly all these cases relief was sought against judgment by default on failure to answer, but the same principle prevails now where there has been a verdict, since the amendment of 1893, incorporating "verdict" in the original statute.
We must then inquire as to the conduct of the defendant and see if it is in default.
Hoke, J., says in Bank v. Palmer,
This requirement has been complied with strictly, as the judge finds: "That immediately after the service of summons on defendant it employed Kenan Wright, a reputable firm of experienced lawyers, living in Wilmington, N.C. duly licensed to practice law in the State of North Carolina, authorized to practice in the courts of Mecklenburg County, and who, while they did not regularly attend every term of court of Mecklenburg County, had and were then practicing in said court, had other cases and especially agreed to go to Charlotte and try this case, and do everything that was necessary to protect the defendant's interest."
But the employment of counsel does not excuse the client from proper attention to his case (Pepper v. Clegg,
The defendant has met this test, and has measured up to the standard.
The judge finds that: "Defendant, after it first employed Kenan Wright, continually consulted them about the case, asked them time and again if there was any chance of plaintiff securing a judgment without defendant being notified, advised said counsel that it has *547 never been sued before, and did not know what was necessary to do; that said counsel assured defendant that they would attend to the case, and do all things necessary, and that no judgment would be taken against them without due notice; and defendant relied on (515) the assurance of said counsel, and proceeded to locate the witnesses and arrange for having their deposition taken, and acted in regard to this matter as a reasonably prudent business man would in regard to important business."
In Ellington v. Wicker,
The facts in these cases show no greater diligence than that of the defendant, nor was there more reason for relying on the assurances of counsel.
Affirmed.
Cited: Sutherland v. McLean
