84 N.C. 366 | N.C. | 1881
The following are the facts found by His Honor: At fall term, 1875, of the superior court of said county the plaintiff obtained a judgment against the defendant in manner and form following: "It appearing by complaint of plaintiff in the above entitled cause that the defendant is justly due and indebted to the plaintiff in the sum of four hundred and fifty-five dollars and sixty-one cents and the defendant *367
having failed to answer, it is considered and adjudged by the court that the plaintiff do recover of the defendant, A. A. McLean, administrator of G. W. McLean, deceased, the sum of four hundred and fifty-five dollars and sixty-one cents and interest on two hundred and ninety-nine dollars and eighty four cents, till paid, and costs of this action." That the judgment was rendered on a negotiable promissory note, under seal, given by defendant, A. A. McLean, as administrator of G. W. McLean, deceased, to D. H. McLean in consideration of an open account due by the said G. W. McLean to the said D. H. McLean, and was docketed on the judgment docket of the superior court of said county on October 15th, 1875. That about three weeks before the fall term, 1875, of the superior court of said county, the defendant requested an attorney to enter for him in said case, the pleas of fully administered, no assets, and all the other protecting pleas of an administrator, and that said attorney promised him he would do so, and that before that time he had employed the said attorney to appear in said case and had paid him his fee, and that the said attorney did not mark his name to the said case, but for some cause, unknown to the said A. A. McLean, administrator, did not file any answer, nor enter any pleas therein, and that that fact was not known to defendant until the 25th day of March, 1880. That the action was commenced in March, 1875, it being spring term of said court, and judgment was rendered at fall term, 1875, for want of an answer. That at fall term, 1878, J. C. McLean, administrator of D. H. McLean, deceased, brought an action against the said A. A. McLean and against McKoy Sellers and N. A. Sellers who were sureties on his administration bond, to enforce payment of the aforesaid judgment, and that the complaint in said action was not filed until fall term, 1879, of said court, and the said suit is now pending. That the defendant had no assets at the time the aforesaid judgment was rendered against him *368
and has no assets now. That defendant allowed judgment absolute in favor of Mary Ann McLean to be taken against him, on open account for the amount of five hundred dollars in January, 1875, after demand had been made on him by the plaintiff for the payment of the negotiable promissory note above described. The motion to set aside the judgment was allowed, and judgment against the plaintiff for costs of motion, and from these rulings the plaintiff appealed.
This was a motion to set aside a judgment by default under section 133 of the Code, upon the ground of surprise or excusable neglect. The decisions of this court are not uniform and altogether reconcilable on the construction of this section of the code. In Griel v. Vernon,
Applying the principle of this distinction, which we think is fully recognized in the cases above cited, the defendant has not brought himself within the provisions of section 133. He was a party to the action, regularly served with the summons, and, after employing counsel, he never enquired what had become of his case until nearly five years after the rendition of the judgment, and while we do not undertake to decide the question, which will probably be raised on the trial of the action on the administration bond now pending in the superior court of Robeson, with the lights now before us, we are unable to see, if his attorney had entered, as he directed, all the protecting pleas of an administrator, how it would have availed him, in that *371
action, which was founded upon his note under seal. See Parsons on Contracts, 128; Hall v. Craige,
But the defendant insists that even if the defendant has failed to make out a case of surprise or excusable negligence under section 133, the facts found by His Honor in the court below make out such a case, as the old courts of equity would have set aside or enjoined the judgment and the superior courts now having all the jurisdiction of the old courts of equity should set it aside, and to sustain the point, the defendant's counsel relied upon the cases of Smith v. Hahn,
In the view we have taken of the case, we do not think we have anything to do with the question, whether the complainant had assets when he gave the bond, or how that fact, be it as it may, can affect the question presented by the record for our determination.
We think the ruling of His Honor in the court below was erroneous and his judgment on the motion is reversed, and judgment must be entered in this court for the plaintiff.
Error. Reversed.