Kerr v. North Carolina Joint Stock Land Bank of Durham

• Decision Date: 01 November 1933
• Docket Number: 326.
• Citation: 171 S.E. 367,205 N.C. 410
• Parties: KERR v. NORTH CAROLINA JOINT STOCK LAND BANK OF DURHAM.
• Court: North Carolina Supreme Court

171 S.E. 367

205 N.C. 410

KERR v. NORTH CAROLINA JOINT STOCK LAND BANK OF DURHAM.

No. 326.

Supreme Court of North Carolina

November 1, 1933

Appeal from Superior Court, Sampson County; Grady, Judge.

Action by J. L. Kerr against the North Carolina Joint Stock Land Bank of Durham. From an adverse judgment, defendant appeals.

Affirmed.

This action was heard by the judge of the superior court on defendant's appeal from the order of the clerk, denying defendant's motion that the judgment by default final in the action be set aside, for that the neglect of the defendant to file an answer to the complaint was excusable. On the facts found by the judge, and set out in the judgment, the order was affirmed, and the defendant appealed to the Supreme Court.

Bryant & Jones, of Durham, for appellant.

Butler & Butler, of Clinton, for appellee.

PER CURIAM.

The findings of fact set out in the judgment are supported by the evidence offered at the hearing before the judge of the superior court. They are therefore conclusive, and not reviewable by this court. Crye v. Stoltz, 193 N.C 802, 138 S.E. 167; Turner v. Grain & Livestock Co., 190 N.C. 331, 129 S.E. 725; Gaster v. Thomas, 188 N.C. 346, 124 S.E. 609. On the finding by the judge that the neglect of the defendant to file an answer to the complaint within the time prescribed by statute was not excusable, the motion of the defendant was properly denied. The further finding that the defendant had failed to show a meritorious defense to the cause of action alleged in the complaint while supported by the evidence, is immaterial. C. S. Supp 1924,§ 600.

Conceding that the inexcusable neglect of the general counsel of defendant to prepare and file an answer to the complaint, as he was directed to do by the defendant, should not be imputed to the defendant (Helderman v. Hartsell Mills Co., 192 N.C. 626, 135 S.E. 627), we are of the opinion that the defendant is not free from blame. It does not appear that its general counsel was directed by the defendant to appear in its behalf in the superior court of Sampson county, where the action was pending, or that he undertook to enter such appearance. In Manning v. R. Co., 122 N.C. 824, 28 S.E. 963, 964, it is said: "Litigation must ordinarily be conducted by means of counsel, and hence, if there is neglect of counsel, the client will be held excusable for relying upon the diligence of his counsel, provided he is in no...