Allen v. Mcpherson

• Decision Date: 24 March 1915
• Docket Number: (No. 259.)
• Parties: ALLEN. v. McPHERSON.
• Court: North Carolina Supreme Court

84 S.E. 766

168 N.C. 435

ALLEN.

v.McPHERSON.

(No. 259.)

Supreme Court of North Carolina.

March 24, 1915.

Appeal from Superior Court, Wake County; Cooke, Judge.

Action by Frank Allen against A. P. McPherson. From refusal to set aside a default judgment, defendant appeals. Affirmed.

Charles Ross, of Lillington, and Douglass & Douglass, of Raleigh, for appellant.

Armistead Jones & Son and W. C. Harris, all of Raleigh, for appellee.

CLARK, C. J. This was a motion to set aside the judgment on the ground of excusable neglect. The summons was issued January 25, 1913. Time to file complaint was extended, and it was filed at April term, 1913. The defendant was allowed till next term to file answer, but he did not then file answer, and at the fifth term, after filing the complaint, the plaintiff moved for and obtained judgment by default and inquiry. The defendant had employed a lawyer living at Lillington, in Harnett county (where the defendant himself lived), and did not employ any resident or local counsel in Wake, where the cause was pending, to represent him. The motion to set aside the judgment was not made till November term, 1913, of Wake.

On a motion to set aside a Judgment for excusable neglect, the finding of facts by the judge is conclusive and irreviewable, and we cannot look into the affidavits to contradict his findings, except on allegation that there is no evidence to sustain the finding, which is not the case here. On the findings of fact, whether, as a matter of law, there was or was not excusable neglect, is reviewable on appeal. If the judge finds correctly that the neglect was not excusable, that concludes the matter. If, however, he finds that the neglect was excusable, whether in such case he shall set aside the judgment is a matter in his discretion, and not reviewable, except in a case of gross abuse. This section (Revisal, § 513) was analyzed and fully discussed in Norton v. McLaurin, 125 N. C. 185, 34 S. E. 269. See, also, citations to that case in the Anno. Ed.

In Norton v. McLaurin, supra, the court held:

(1) The negligence of counsel will not excuse, if the client himself has been neglectful; (2) before granting an application to set aside a judgment, the court must find, as a material fact, that the defendant has a meritorious defense. In this case the facts show that the client himself was neglectful. A client cannot place his case in the hands of his counsel and pay no further attention to it. "It is not enough that parties to a suit should engage counsel and leave it entirely in his charge. They should, in addition to this, give it that amount of attention which a man of ordinary prudence usually gives to his most important business." Roberts v. Allman, 106 N. C. 391, 11 S. E. 424; Pepper v. Clegg, 132 N. C. 315, 43 S. E. 906. See, also, numerous cases cited in that opinion, and the citations thereto in the Anno. Ed. In Pepper v. Clegg, supra, we said: "When a man has a case in court the best thing he can do is to attend to it" This has been quoted with approval in McClintock v. Insurance Co., 149 N. C. 36, 62 S. E. 775, and in Lunsford v. Alexander, 162 N. C. 530, 78 S. E. 275.

In State v. Downs, 116 N. C. 1064, 21 S. E. 689, quoted and approved in State v. McLean, 121 N. C. 601, 28 S. E. 140, 42 L. R. A. 721, and Barber v. Justice, 138 N. C. 21, 50 S. E. 445, we said that the ignorance of law by counsel would not be an excuse for a client, for, if it were, "the more ignorant counsel could manage to be the more he might be in demand." For the same reason, if the negligence of counsel were an excuse, when the client himself pays no attention to the case, then "the more negligent counsel could manage to be, the more...