Manning v. Roanoke & T.R. Co.
| Decision Date | 22 February 1898 |
| Citation | 28 S.E. 963,122 N.C. 824 |
| Parties | MANNING v. ROANOKE & T. R. R. CO. |
| Court | North Carolina Supreme Court |
Appeal from superior court, Bertie county; Brown, Judge.
Action by John Manning against the Roanoke & Tar River Railroad Company. From a judgment for plaintiff by default, defendant appeals. Affirmed.
The return of a summons, properly served, may be amended to show that the deputy making the service had been duly appointed by the sheriff.
Francis D. Winston and MacRae & Day, for appellant.
St Leon Scull, for appellee.
The summons having in fact been served, any irregularity in the signature of the officer to the return of service was corrected by the affidavit showing that the deputy serving the summons had been duly appointed by the sheriff. It was a full and complete amendment of the return, and related back and had the same effect as if the amended return had been originally made. Grady v. Railroad Co., 116 N.C 952, 21 S.E. 304. The defendant, having in fact been served with process by a properly authorized officer, cannot be prejudiced by an amendment which merely makes the record speak the truth.
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 default himself. Roberts v. Allman, 106 N.C. 391, 11 S.E. 424; Burke v. Stokely, 65 N.C. 569. He must, however, not only pay proper attention to the cause himself, but he must employ counsel who ordinarily practice in the court where the case is pending, or who are at least entitled to practice in said court and engage to go thither. If he employ counsel whose duty is not to attend to the case himself, but merely to select counsel who will do so, the first-named counsel is pro hac vice an agent merely, his duty not being professional, and his neglect is the neglect of the party himself, and not excusable. Finlayson v. Accident Co., 109 N. C., at page 200, 3 S. E., at page 740, citing Churchill v. Insurance Co., 92 N.C. 485; Griffin v. Nelson, 106 N.C. 235, 11 S.E. 414; Boing v. Railroad Co., 88 N.C. 62. In the present instance the summons was sent to the general counsel of the defendant, resident in Norfolk, Va., who had no authority to practice in this state, not having obtained license so to do in the manner required by Code, § 17, and in fact being debarred, as a citizen of another state, from so doing by section 19, which requires all attorneys to take an oath of allegiance to this state. That said nonresident had appeared in some causes in this state does not militate against this, since the appearance of such counsel is a matter of courtesy in each and every case, and on motion in each case, and only for the occasion on which it is allowed. The statute forbids the courts from allowing nonresident counsel (when citizens of other states, and not holding license from this court) to practice habitually in our courts, and they cannot acquire the right to do so. Besides, even if the general counsel of the defendant to whom the summons was sent had been counsel regularly authorized and empowered to practice in the courts of this state, it does not appear that he was in the habit of attending regularly the courts of Bertie county, or especially agreed to attend the term of said court on this matter, and, in the absence of such proof, the defendant has not shown that it has paid proper attention to the case, and that its neglect was excusable, and this burden was on the defendant. Kerchner v. Baker, 82 N.C. 169. It is no doubt very convenient for the defendant to have a general counsel to whom notice of the service of process can be sent, who shall parcel out the legal matters of the company, and select local counsel to whom each case shall be intrusted; but in doing this the general counsel is simply discharging the duty the president or any other officer of the company could discharge, and is pro hac vice acting merely as an agent of the defendant, and not as an officer of the court; hence his neglect cannot excuse the defendant. The defendant has the same rights as any other litigant, neither more nor less. The law requires the summons to be served 10 days before court, to give defendants time to secure counsel. There is no greater time allowed one class of defendants than others. In fact, this defendant was served with process 35 days before the first day of the court at which it was summoned to appear. It was its duty to employ, like any other litigant, an attorney regularly practicing in the court...
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