Bank Of Glade Springs v. Palmer Et Ux
| Decision Date | 30 November 1910 |
| Citation | 153 N.C. 501,69 S.E. 507 |
| Parties | BANK OF GLADE SPRINGS v. PALMER et ux. |
| Court | North Carolina Supreme Court |
A party seeking to set aside a default judgment for excusable neglect must show that the counsel employed by him is one who regularly practices in the court where the litigation is pending, or who is entitled to practice therein, and that he was specially engaged to attend to the case.
[Ed. Note.—For other cases, see Judgment, Dec. Dig. § 162.*]
Revisal 1905, § 449, providing that, when service of process has been made by publication, defendant may on good cause shown be allowed to defend after judgment, or at any time within a specified time after notice, gives to one who brings himself within the statute the right to avail himself of any objection to the validity of a judgment that he could have made if he had been personally present and made answer; and this is a legal right, which may not be lost, except by neglect arising after actual notice of the proceedings as shown by evidence.
[Ed. Note.—For other cases, see Judgment. Cent. Dig. § 253; Dec. Dig. § 142.*]
Where, in an action against a husband and wife to set aside a conveyance by him to her as fraudulent, process was served by publication only, and the wife had no knowledge of the pendency of the action until after judgment against her, and she then immediately employed an attorney to procure the setting aside of the judgment, and showed that she had bought the property in good faith at a fair price, she was entitled to have the judgment set aside, so that she could answer.
[Ed. Note.—For other cases, see Judgment, Cent. Dig. §§ 249-251; Dec. Dig. § 138.*]
Appeal from Superior Court, Ashe County; Long, Judge.
Action by the Bank of Glade Springs against Charles F. Palmer and wife. From a judgment refusing to set aside a default judgment for plaintiff, defendants appeal. Judgment set aside as to defendant Sue M. Palmer.
The action was to set aside a deed from Chas. F. Palmer to his wife, Sue M. Palmer, on the allegation that same was fraudulent as to creditors. Summons was issued in January, 1909, and, defendants being nonresidents, same was duly served by publication, and verified complaint filed January 11, 1909. At March term, 1909, defendants failed to appear in person or by attorney, and at July term, following, judgment was duly obtained. Among the findings of fact it was made to appear: "That said July term, 1909, convened on July 12, 1909, and on said date one of the defendants, Charles F. Palmer, was in Ashe county, N. C, at the Bromine-Arsenic Springs, within nine miles of Jefferson, N. C, and that said Palmer wrote a letter to the plaintiff's counsel, requesting said counsel to write J. I. Hurt, defendants' attorney, living at Abingdon, Va., informing him of the nature of the suit, and that plaintiff's attorney wrote him on July 13, 1909, giving the required information; that on July 14, 1909, the said J. I. Hurt wrote the plaintiff's attorney, also requesting that the plaintiff's attorney inform him of the nature of the suit; that plaintiff's attorney wrote him on the 17th day of July, 1909, stating the nature of the suit, and also informing him that said cause was set for trial on July 21, 1909; that said J. I. Hurt, attorney employed by defendants, is a nonresident attorney, and not in regular attendance on this court; that the defendants never employed any attorney in regular attendance on this court until after final judgment had been rendered in said action, and until after the July term, 1909, of this court." The feme defendant, Sue M. Palmer, filed an affidavit to the effect that she had bought the land in good faith at a fair price, paying cash for same, and that she had neither notice nor knowledge of the pendency of suit or proceedings therein until after judgment was entered against her, and as soon as she was informed of the action of the court she employed a resident attorney and made application to set the judgment aside. The court refused to set aside the judgment, holding that no excusable neglect had been shown. Defendants excepted and appealed.
G. L. Park, for appellants.
T. C. Bowie, for appellee.
It has been held by this court that a party litigant, "who seeks to be excused for laches on the ground of excusable neglect, must show that the counsel employed is one who regularly practices in the court where the litigation is pending, or at least one who is entitled to practice therein, and was especially engaged to go thither and attend to the case." Manning v. Railroad, 122 N. C. 824, 28 S. E. 963. A proper application of this principle would seem to...
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