34 S.E. 269 | N.C. | 1899
This cause coming on to be heard upon motion of defendant to (186) set aside the judgment rendered at April Term, 1899, on account of the excusable neglect of defendants, the court finds the following facts, viz.:
That summons in said action was issued January 4, 1899, and personally served on the defendants on January 6, 1899; that the complaint was filed on January 23, 1899, during the return term, and John D. Shaw, Jr., had notice of the fact that said complaint would then the filed; that no order was made by the court allowing the defendants time to file answer or bond, the action being an action of ejectment, but the attorneys of defendants supposed, and had reason to suppose, a general order had been made for time to file pleadings in said cause; *131 that at the April Term, 1899, of said court, on Tuesday of said term, H. F. Seawell, one of the attorneys for the plaintiff, in open court moved for judgment by default for want of answer and for want of a bond; that said Seawell did not know who was the attorney for defendant, or whether any member of the bar appeared for said defendants, no attorney being marked on the record; that at said time J. D. Shaw, Jr., attorney for the defendants, was in the court-room, and if he had been paying any attention would have heard said motion, but said attorney was not advertent to said motion, and the matter was not expressly called to his attention; that on the said next day a general order was entered to allow 30 days to file complaints and 30 days thereafter to file answers; that no order for time to file bond was made; that the judgment herein was regularly entered, and on the 20th day of May, 1899, execution was issued in said cause on said judgment, which was the first actual notice to defendants of the taking of said judgment; that up to said issuance of execution no answer had been filed by either of said defendants and no bond filed; that said John D. Shaw, Jr., is solvent:
Whereupon, the court, in the exercise of its discretion, adjudges (187) that said judgment be set aside on account of the excusable neglect of defendants, and said defendants have 30 days after the adjournment of this court in which to file an answer and bond required by the statute upon these conditions, which the court adjudges to be reasonable and just: i. e., that said defendants execute a bond in the sum of $1,200, payable to the plaintiff, conditional for the faithful payment to said plaintiff of all damages which he may sustain by reason of any trespass upon the lands involved in said action since the 4th day of January, 1899, until the final determination of this action; that said bond be made and justified before, and approved by, the clerk of this court, within 20 days, and unless this part of this judgment is complied with within the time prescribed, then the judgment of April Term, 1899, be not set aside, but the same to remain in full force and effect.
W. S. O'B. ROBINSON, Judge Presiding.
To the foregoing finding of facts the plaintiff excepted, and from the judgment rendered the plaintiff appealed to the Supreme Court.
This is a motion to set aside a judgment for excusable neglect under The Code, section 274. The findings of fact by the judge *132
are final (Weil v. Woodard,
In this case the judge found that the summons was duly served on defendants more than ten days before court, and a verified complaint filed within the first three days of the first term, that no order was made extending time to file answer and bond in this case, nor any general order of that kind, but defendants' attorney had reason to believe a general order had been made at that term giving time to file pleadings; that at the second term of court no attorney having yet appeared or entered his appearance for defendants, no answer or demurrer being filed, nor any bond filed as required by The Code, sec. 237 (this being an action of ejectment), judgment was taken in open court by default final for the land and by default and inquiry as to the (189) damages, which judgment was regularly taken and entered up, the defendants' counsel being then present court, and "if paying attention would have heard the motion"; that the next day a general order was made allowing 30 days to file pleadings, but no order was made to extend time for filing defense bonds. It is further found as a fact that the defendants' attorney is solvent. *133
Upon these findings of fact the court adjudged there was excusable negligence, and in his discretion set the judgment aside. The latter action would have been irreviewable if the finding of law had been correct that there was excusable neglect. But the negligence was not excusable. (1) In the late case of Vick v. Baker,
Besides (2), the neglect of counsel will not excuse if the defendant himself has been neglectful (Manning v. R. R., supra), and it is not shown that defendants took any interest in the case, attended court, gave any instructions to their attorney, or asked any from (190) him. The employment of counsel did not relieve them of all attention to the case. It was still their duty to look after the matter and give the case at least "such attention as a man of ordinary prudence usually gives to his important business." Roberts v. Allman,
Judgment below is reversed.
Cited: Credle v. Ayers,
(191)