Skinner v. Terry
| Citation | 12 S.E. 118,107 N.C. 103 |
| Parties | Skinner et al. v. Terry. |
| Decision Date | 13 October 1890 |
| Court | United States State Supreme Court of North Carolina |
Judgment by Default—Vacating—Inquiry.
1. Code N. C. § 274, providing for the setting aside of a judgment taken against a party through his "mistake, inadvertence, surprise, or excusable neglect, " does not authorize the setting aside of a judgment obtained against a party through his mistake or ignorance of the law.
2. Under Code N. C. §§ 385, 386, providing in what cases judgment by default shall he final, and in what cases inquiry shall be had, where the cause of action is for services as attorney, where no sum absolute is alleged to have been agreed on for such services, on default an inquiry is necessary.
3. A motion to set aside a judgment should not be denied upon the particular grounds assigned thereby and the mover left to make another motion for the same purpose, simply assigning in its support a ground not specified, but which plainly appeared in the record.
4. An objection that such a motion was made in vacation, and in the wrong county, is without merit where service of the notice of motion is accepted, the hearing continued by consent, and both parties are represented by counsel at the hearing without any such objection being made.
Appeal from superior court, Perquimans county; Whitaker, Judge.
The plaintiffs having filed their complaint, the defendant filed his demurrer to the same. The court held that this demurrer was frivolous, and the defendant excepted, declaring his purpose to appeal to this court. He then at once moved the court to allow him to file an answer to the complaint, but this motion was denied upon the ground that the court "had no power to permit the answer to be filed." The court then gave judgment for the plaintiffs, and the defendant, having excepted thereto, appealed to this court, but he abandoned and failed to prosecute his appeal. Within a few days, and within 12 months next after the rendition of the judgment, the defendant, in vacation, filed his petition in the action, the material part of which is as follows: "(1) At the trial, when your honor overruled defendant's demurrer, and authorized plaintiffs' counsel to draw a judgment of recovery against defendant for the amount demanded in the complaint of plaintiffs, the defendant, this petitioner, understood your honor to refuse his application to be allowed to file an answer, and was thus surprised and misled as to the proper course to be pursued by him in the management of his case. (2) After the trial, the defendant, your petitioner, discovered evidence that would have had a very material effect, as he believes, in modifying the judgment aforesaid, if it had been before the court upon a trial of the case upon its merits. That evidence was the written receipt of Thomas G. Skinner, one of the plaintiffs in said action, for seventy-five dollars in full of all fees down to September 23, 1S87, and the written receipt of the other plaintiff, J. H. Blount, for twenty dollars. Said receipts are herewith filed as a part of this petition. That said plaintiffs' services after that date were less onerous, and not more efficient than they had previously been. That at the time of the trial, this petitioner did not know of the existence of the said written receipts, and discovered them by accident, while searching for other papers after the adjournment of court. He could not, by the exercise of due diligence, have discovered this evidence in time for the trial. (3) That the enforcement of the judgment aforesaid would inflict, as your petitioner feels, a most inequitable hardship upon him; that a trial of the case upon its merits could, at most, work no other injury to the plaintiffs than a brief postponement of their demands, provided said demands should be ultimately determined in their favor by the court; and that your petitioner believes, and accordingly avers, that, upon a full and fair trial of the case upon its merits, the judgment aforesaid would be most materially reduced in amount, if not entirely reversed. (4) That there was never any express contract made for the services rendered by plaintiffs and recovered in said judgment; that the case was twice appealed to the supreme court by the adverse party, and that plaintiffs paid no attention to the case in that court, and that the sum charged by plaintiffs in the suit in which their services were rendered was grossly excessive in comparison with the services rendered. Wherefore, in consideration of the surprise aforesaid, by which your petitioner was so overwhelmed as for the time to lose a judicious control of himself and his case, and in consideration of the after-discovered evidence above referred to, and in consideration of the fact that a trial of the case upon its merits would work no wrong or injury to any of the parties, your petitioner prays that the judgment aforesaid may be set aside; that the case may be reinstated upon the docket; that petitioner may be allowed to file an answer in the case; and that the case itself may be tried upon its merits. And for such other and further relief as to justice and equity may appertain. " The plaintiffs each filed their answer to this petition, and, without objection from them, the court afterwards heard the motion to set the judgment aside, the counsel of both parties being present and debating the same, in a county other than that in whose court such judgment was given. The court gave judgment, whereof the following is a copy: " Upon considering the petition and affidavits and exhibits filed herein, and the facts found, as above set forth, and the court being of the opinion that it now has not the power to vacate or to set aside said judgment, rendered at the spring term, 1800, of Perquimans superior court, it is ordered that the petition be dismissed at the cost of the petitioner, Harvey Terry. " The petitioner excepted to the ruling, and appealed to the supreme court.
L. D. Starke, for appellant.
W. B. Rodman, Jr., for appellees.
Merrimon, C. J., (after stating the facts as above.) The statutory provision, (Code, § 274) invoked by the defendant...
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