Branch v. Walker

• Decision Date: 28 February 1885
• Citation: 92 N.C. 87
• Court: North Carolina Supreme Court
• Parties: JOHN BRANCH and wife v. SUKEY WALKER, et als.

92 N.C. 87

JOHN BRANCH and wife

v.SUKEY WALKER, et als.

Supreme Court of North Carolina.

February Term, 1885.

This was a motion to set aside a judgment, heard before Avery, Judge, at January Special Term, 1884, of BERTIE Superior Court.

Notice of the motion to set aside the judgment was served on one of the plaintiff's attorneys on October 19, 1882, and the Fall Term of Bertie Superior Court began on October 29, 1882.

The defendants employed an attorney, whose name was entered on the appearance docket, but no answer was filed. On Thursday of the last week of the term, His Honor, Judge McKoy, made the following order:

“Ordered, that in all cases that appear on the summons docket, when complaint or answer is not demanded during the term, plaintiffs are allowed sixty days to file complaint, and defendants one hundred and twenty days to file answers.”

Just below this order, on the minutes of the Superior Court, another order appears, as follows:

“When parties desire judgments of this term for want of answer, they will enter on the summons docket ‘answer demanded at this term’, and then they will be entitled to judgment for failure to answer at this term. ALLMAND A. MCKOY, Judge.”

Judge McKoy left the court-house during the afternoon of Thursday, and did not return to the court during the term. When leaving he instructed the sheriff not to adjourn court, but to allow it to expire by its limitation.

The second of the orders above set forth was made by Judge McKoy at his own room, after he had left the court-house for the term. After the second order was made, one of the plaintiff's attorneys entered on the summons docket opposite this action the words, “Answer demanded at this term.” After the expiration of the term of the court, and after Judge McKoy had left the county of Bertie, he signed and sent to counsel a judgment against the defendant for want of an answer. About twenty days after signing this judgment, without notice to the parties, Judge McKoy signed and sent to the clerk another judgment modifying the judgment by default, and allowing the defendants to answer upon their filing a bond for costs and damages within twenty days, and filing an answer setting up a substantial defence.

The defendants' counsel had no notice of the orders made during the term in regard to filing pleadings, nor did he have notice of the entry made on the summons docket by the plaintiffs' counsel.

Upon these facts, His Honor set aside both of the judgments, and the plaintiffs appealed.

Mr. R. B. Peebles, for the plaintiffs .

No counsel for the defendants.

MERRIMON, J.

The Court held properly that the notice of the motion to set aside the judgment was sufficient.

It was served on the attorney of the plaintiffs on the 19th day of October, 1882, and nine days next before the term of the court began, at which the motion was made. At that time, the statute (C. C. P., 346) required only eight days' notice of such motions, and it applied to this case. The motion as to time was, therefore, sufficient. The law as to time of notice has been changed-- The Code, §595, prescribes that ten days' notice of such motions shall be given, unless the judge, in an order to show cause, shall prescribe a shorter time.

It was sufficient to give the notice to the plaintiffs' attorney of record. After his name was entered on the record as counsel, he could not withdraw from the action without the leave of the Court. It is a mistaken notion that an attorney can become counsel of record in an action, and cease to be counsel at his own will, pleasure and convenience. He is, in an important sense, an officer of the Court, and under its direction and control in respect to matters affecting the Court and the administration of public justice, and as soon as he is duly retained in an action or proceeding, he has, by virtue of his office, authority to manage and control the conduct of the action on the part of his client during its progress, subject to the supervision of the Court, and he is the proper person on whom notice should be served in respect to matters pertaining to the conduct of and proceedings in it after it is brought; and his authority and responsibility continue until it is completely determined in the Court wherein it is pending. The counsel is responsible to the Court and his client, and generally, the Court recognizes him as having charge of the action, and authorized and bound to take notice of all motions and proceedings in it. This is so upon general principles that govern Courts ordinarily in the administration of justice; and in this State, The Code, § 597, in respect to notices and the filing and service of papers, expressly provides that service may be made on the party or his attorney.

But it is said that the plaintiffs having obtained judgment, for want of an answer, the relation of the counsel to the action ceased, so that he had no further connection with or control over it, and, therefore, notice to him was not sufficient. We do not think so. The action in this case was not completely ended when the judgment was obtained. A variety of motions might, in the order of procedure, be made in respect to the judgment. A motion might be made to set it aside for alleged irregularity. So a motion might be made at any time within twelve months to set it aside, because of mistake, surprise or excusable neglect. There might be a motion to modify the provisions of the judgment, or as to the character of the execution, in a case like this, or like motions might be made, some of them at a...