Dell School v. Peirce

• Decision Date: 22 October 1913
• Citation: 79 S.E. 687,163 N.C. 424
• Parties: DELL SCHOOL et al. v. PEIRCE.
• Court: North Carolina Supreme Court

79 S.E. 687

163 N.C. 424

DELL SCHOOL et al. v. PEIRCE.

Supreme Court of North Carolina

October 22, 1913

Appeal from Superior Court, Duplin County; Allen, Judge.

Action by the Dell School and others against W. W. Peirce. Defendant defaulted and thereafter moved to set aside the judgment, and from the denial of his motion he appeals. Affirmed.

Service of process upon one attending court as a witness is not void but voidable and hence must be attacked by motion to set aside, the defendant appearing specially for the purpose of a motion; his remedy, in case the motion is overruled, being to except, answer, and appeal from the final judgment.

This is a motion before Judge Allen to set aside a judgment rendered at November term, 1912, by Judge Carter. The judge found the following facts: "Summons was issued July 4, 1910, and personally served by the deputy sheriff on that date and returned to the August term, 1910, of the Superior court of Duplin county. At the August term, 1910, an order was duly entered before his honor, Frank Carter, judge presiding, in open court, making additional parties plaintiffs and allowing the plaintiffs 30 days to file complaint, and no order other than that was made as to pleading, and on September 14, 1912 the plaintiffs filed a duly verified complaint. The August term, 1912, of the said court adjourned on the 7th day of September, 1912. The defendant, W. W. Peirce, is a practicing attorney in the courts of this state. No appearance has even been entered on the docket of this court either by the defendant or by an attorney for him. The defendant attended the November term 1912, of said court and personally examined the order at the November term, 1912, and the complaint which was filed by the plaintiffs; the same being on file in the clerk's office. No motion was made before the court for time to answer, and no time was granted by the court or by counsel, and there is no rule of the Duplin bar allowing time to answer without application to the court; nor has the defendant ever filed answer in this cause; nor has he given the bond required by the statute or asked to be allowed to do so. The defendant left the court on Friday before final adjournment on Saturday, and, on Saturday before the final adjournment, the plaintiffs moved the court for judgment, for the want of an answer. A member of the bar present, not of counsel on either side, suggested that the defendant desired time to answer. The plaintiffs insisted upon their motion, and, after hearing the same, his honor, Carter, judge, rendered the judgment set out in the record. The judgment at the November term, 1912 does not appear to have been rendered against the defendant through such mistake, inadvertence, surprise, or excusable neglect as entitles him to relief, and it is so adjudged; nor does he show, in the opinion of the court, a meritorious defense to the action." The court denied the motion, and defendant appealed.

W. C. Munroe and W. W. Peirce, both of Goldsboro, and Winston & Biggs, of Raleigh, for appellant.

A. D. Ward, of New Bern, and Johnson & Johnson, of Warsaw, for appellees.

WALKER J.

It would be useless to discuss each of the 11 assignments of error, as the material questions are: (1) Was there excusable neglect on the part of the defendant? (2) Did he show a meritorious defense?

This is an action to recover the possession of land. Defendant knew that at August term, 1912, an order had been made enlarging the time for filing pleadings. The August term adjourned September 7, 1912, and the verified complaint was filed September 14, 1912. Whether the defendant actually knew before the November term, 1912, that the time for filing pleadings had been extended, the order was made at a regular term, it was his duty to be there and take notice of it, and the law presumes that he had full knowledge of it. Spencer v. Credle, 102 N.C. 68, 8 S.E. 901; Zimmerman v. Zimmerman, 113 N.C. 432, 18 S.E. 334; Hemphill v. Moore, 104 N.C. 379, 10 S.E. 313; Clark's Code (3d Ed.) § 595, and the numerous cases in the notes. At any rate, the defendant knew at the November term what had been done and should then have asked the court for further time to file his answer and defense bond. Instead of doing so, he left the court and took his chances. No reasonable explanation is given for this apparent neglect of his own interest. Being himself an attorney, he cannot well plead ignorance of the law, and he must therefore have known that his time for pleading had expired. To say the least, defendant, in any view of his case, left his affairs in a very precarious state and with a seeming disregard of consequences.

He has never yet tendered his defense bond, which must precede his right to answer. It is so distinctly provided by statute. Revisal, § 453; Jones v. Best, 121 N.C. 154, 28 S.E. 187. That section requires him to file this bond "before he is permitted to answer, plead, or demur." That was his first duty at November term, as soon as he learned the cause of action, if he intended to defend the action, and this he failed to do.

And he took no proper action in any way looking to the exercise of his right to defend, or to its revival, as it had then been lost by his delay. We have seen that he had notice of the order at August term, extending the time to plead, and this required him to make reasonable inquiry as to the filing of the complaint and to be on his guard. He had not even entered his appearance on the docket. The law does not allow a party to sleep on his rights. He must keep awake and be alert exercising the care and watchfulness of an ordinarily prudent man in protecting his rights and saving his interests. We have held that the standard of care by which he must be judged is that which a man ordinarily prudent bestows upon his important business. Roberts v. Alman, 106 N.C. 391, 11 S.E. 424. We said in the recent case of McLeod v. Gooch, 162 N.C. --, 78 S.E. 4, that "a party has no right to abandon all active prosecution of his case simply because he has retained counsel to represent him in the court." This applies with peculiar force to the defendant, now applying for relief, as he has assumed the dual position of attorney and client and must therefore give both his personal and professional attention to his business on the docket. We do not think that, in any view of the facts, the defendant has made out a case of excusable neglect. There was apparent inattention and indifference throughout the progress of the cause, without any adequate explanation. Even if the case was not on the trial or motion docket, defendant should at least have moved for leave to file his answer, and, if he had done this, the court, in the exercise of its discretion, may have granted his motion. The fact that this case was not on the trial or motion docket did not prevent the court from giving judgment, though it might have excused defendant's absence if he had been otherwise diligent and active. He took the chance of leaving his case to take care of itself, with no one duly authorized to represent him and look after his interests, and he must abide the result. We cannot take away the advantage his adversary has gained, and legitimately so, by due attention to the case. Vigilance is often a part of the price we must pay for what we get and what we keep after it is acquired. He who neglects his interests is apt to lose them, which is the plight of defendant now. It early grew into one of the cardinal maxims of the law that it will assist...