85 N.C. 371 | N.C. | 1881
The judgment was rendered against defendant at spring term, 1880, and he moves to set it aside under section 133 of the Code. The following are the facts found by His Honor:
1. That the action was begun before a justice on the 18th of July, 1878, and judgment rendered on the 8th of August, 1878, for $176.20, from which the defendant appealed to the superior court.
2. That at spring term, 1880, of the last named court, the cause stood for trial, and was set for trial on Wednesday of the third week of the term.
3. That a calendar of the causes was made out for said spring term, fixing a day for the causes, which was published in the town papers, and printed and distributed to the attorneys and litigants, and this cause was set for trial on Wednesday of the third week upon said calendar, two weeks before such Wednesday.
4. That the defendant had employed counsel who appears *373 of record in the cause, was present at spring term, 1880, and knew of the day on which the cause was set.
5. That the defendant resides in Asheville, where the court was held, and could have known the day on which his case was set for trial by enquiring of his counsel, the clerk, or by reference to the calendar, and he was sick for two weeks and confined to his house until two or three days before Wednesday of the third week.
6. That on Wednesday of the third week of the term the cause was called for trial, and upon representation of the defendant's counsel to the court, that the defendant was under the impression that the case was set for Thursday, and had gone to his mill, two miles from town, the court adjourned the case till the afternoon to allow time for the defendant to be sent for.
7. That in the afternoon after a sufficient lapse of time for the defendant to have been sent for, the cause was again called for trial, and a trial had, the defendant not being present, but represented by counsel, who urged a further postponement, which was denied by the court.
8. That on the next day, Thursday of the third week of the term, defendant moved for a new trial upon his affidavit, which was refused by the court.
9. That on Saturday thereafter, the defendant made another affidavit, and another motion made thereon for a new trial, or to set aside the verdict, which the court also refused, whereupon the defendant gave notice of appeal which was not perfected nor prosecuted beyond such notice.
It was adjudged that the defendant's motion be denied with costs to the plaintiff, and the defendant appealed. We concur with His Honor in his conclusion *374 that the defendant is guilty of inexcusable neglect. The facts in cases like this are so various, that it is difficult to lay down any general rule for guidance, but each case must depend upon its particular circumstances.
But though there may be some apparent conflict in the decisions, we think the distinction is well marked between those cases, where the negligence is to be imputed to the attorney and the party is not in default, and where the party himself is guilty of the negligence. So it was held in the case of Griel v. Vernon,
It is also distinguishable from the case of McLean v. McLean,
Our case is rather governed by the decisions in Bradford v. Coit,
Here, the defendant resided in the town of Asheville where the court was being held, and his attorney was in attendance upon the court. If he had exercised the ordinary vigilance which is expected of every suitor in a court of justice, he could easily have ascertained the day when his case was set for trial. He could have done so by referring to the calendar, or by applying to his attorney, or to the clerk of the court, but instead of so doing he left the town and remained absent during the day. After calling his case for trial in the morning of the day on which it was set for trial, the court indulged his counsel until the afternoon that he might have an opportunity of sending for him. Whether he sent or not does not appear, but it was no part of the professional duty of his counsel to send into the country for him. The neglect was his, not that of his counsel. "He failed to give that amount of attention to his case which a man of ordinary prudence usually gives to his important business." Sluder v. Rollins,supra. This neglect is therefore inexcusable.
There is no error. The judgment must be affirmed.
No error. Affirmed. *376