Gosnell v. Hilliard

• Court: North Carolina Supreme Court
• Writing for the Court: ADAMS, Justice.
• Citation: Gosnell v. Hilliard, 205 N.C. 297, 171 S.E. 52 (N.C. 1933)
• Decision Date: 11 October 1933
• Docket Number: 80.
• Parties: GOSNELL v. HILLIARD.

171 S.E. 52

205 N.C. 297

GOSNELL v. HILLIARD.

No. 80.

Supreme Court of North Carolina

October 11, 1933

Appeal from Superior Court, Madison County; Alley, Judge.

Action by Everett Gosnell, by his next friend, S. K. Gosnell against Halcyone Parker Hilliard, executrix of Dr. William D Hilliard, deceased. From an order setting aside judgment for plaintiff, plaintiff appeals.

Affirmed.

On January 4, 1928, the plaintiff brought suit against the Southern Railway Company, Biltmore Hospital, Incorporated and Dr. William D. Hilliard, alleging that he had been injured by the negligence of the Southern Railway Company that he had been put in charge of Dr. Hilliard, agent of the railway company, and injured by his malpractice, and that the hospital, also, was liable for the negligent manner in which he had been treated. Dr. Hilliard died testate on August 15, 1928, and his executrix was afterwards made defendant.

The action came on for trial at October term, 1931, of Madison county and was dismissed as to all the defendants. On appeal to the Supreme Court the judgment was affirmed as to the hospital and the railway company and was reversed as to the executrix of Dr. Hilliard. 202 N.C. 234, 162 S.E. 569. At April term, 1932, of Madison county the plaintiff recovered judgment against the present defendant upon issues submitted to the jury when she was not in attendance upon the court and when she was not represented by counsel. On September 27, 1932, she gave proper notice that she would move to set aside the judgment under C. S. § 600 on the ground of excusable neglect. The motion was heard at April term, 1933, by Alley, J., who rendered the following judgment:

"This cause coming on to be heard, and being heard before His Honor, Felix E. Alley, Judge Presiding, and it appearing to the Court, and the Court finds the facts to be, that, the defendant in the above entitled action, Halcyone Parker Hilliard, Executrix of the estate of Dr. William D. Hilliard, has a good and meritorious defense to said cause; and it further appearing to the Court that she was represented by counsel prior to the time of the taking of the judgment, to-wit: at April Term, 1932; that prior to said time her counsel, Johnson, Smathers & Rollins, thru J. Bat Smathers, of said firm, had advised her, the said Halcyone Parker Hilliard, Executrix of the estate of Dr. William D. Hilliard, that it would be necessary for her to pay his firm some fees for their services performed and to be performed in connection with said cause; that upon receiving said notice by way of letter the said defendant, Halcyone Parker Hilliard, Executrix of the estate of Dr. William D. Hilliard, called upon the said J. Bat Smathers, and in the conversation there was a general discussion in regard to a payment on fees, in which discussion the said Smathers advised the defendant that he would have to have some money; that the said defendant explained to the said Smathers that she had no funds, and had been assured by Mr. Rollins, a former partner of the said J. Bat Smathers, that the case would be properly taken care of, and that she (did) not give it any further thought; that in said conversation the said Smathers advised the defendant that the case would probably be on for trial at the next term of court, but did not state when the term would be held, or at what time the case would probably be tried; that the above is all that was said with regard to the payment of fees; that the said Halcyone Parker Hilliard, Executrix of the Estate of Dr. William D. Hilliard, had no further conversation with her attorney, and received no further advice from him as to when the case would be tried; that the said J. Bat Smathers is a reputable attorney, and a member of a reputable firm; that the said above entitled case was placed on the calendar for trial at April Term, 1932, but the defendant had no knowledge that same had been placed on the calendar, or that it would be tried at that term, nor did she know that said Smathers was going to withdraw as counsel, and not represent her at the trial of said case; that when the case was called for trial the said J. Bat Smathers requested that his firm be permitted to withdraw as counsel in said cause, due to the fact that he had not been paid the fees requested, and the permission requested was granted, and the said J. Bat Smathers, for his firm, withdrew as counsel in said cause for the defendant, whereupon the case, without the knowledge or any information on the part of the defendant, was immediately called for trial, and tried, and a verdict was returned by the jury in favor of the plaintiff and against the defendant for the sum of Twenty-five Hundred ($2500) Dollars, and a judgment as appears in the record was entered, adjudging that the plaintiff have and recover of the defendant, the said Halcyone Parker Hilliard, Executrix of the estate of Dr. William D. Hilliard, the sum of Twenty-five Hundred ($2500) Dollars, and the costs.

"That the said Halcyone Parker Hilliard, Executrix of the estate of Dr. William D. Hilliard, at the time of the trial of said cause was the only defendant in said action, the other two defendants, to-wit: Southern Railway Company and The Biltmore Hospital, having prior to that time been discharged and the action dismissed as to them.

"The Court further finds as a fact that the said Halcyone Parker Hilliard, Executrix of the estate of Dr. William D. Hilliard, was guilty of no laches on her part, but was only guilty of such conduct as amounted to excusable neglect; that the said Halcyone Parker Hilliard, Executrix of the estate of Dr. William D. Hilliard, as soon as she first discovered that a judgment had been taken against her, to-wit: in August, 1932, took immediate and proper action to have the judgment set aside and cancelled. The Court finds as a fact that Asheville is a distance from Marshall 21 miles and there is a railroad, bus, telegraph and telephone service between said cities.

"It is now, therefore, ordered, adjudged and decreed, on motion of Jones & Ward, attorneys for the defendant, that the judgment heretofore entered at the April Term, 1932, of this court in this cause be, and the same is hereby declared void and set...