Moore v. Deal

• Decision Date: 15 January 1954
• Docket Number: No. 382,382
• Citation: 79 S.E.2d 507,239 N.C. 224
• Parties: MOORE, v. DEAL.
• Court: North Carolina Supreme Court

Page 507

79 S.E.2d 507

239 N.C. 224

MOORE, v. DEAL.

No. 382

Supreme Court of North Carolina.

Jan. 15, 1954

Baxter H. Finch, Statesville, William I. Ward, Jr., of the firm of Land, Sowers, Avery & Ward, Statesville, for defendant-appellee.

J. G. Lewis, C. B. Winberry, Statesville, of the firm of Adams, Dearman & Winberry, Statesville, for plaintiff-appellant.

PARKER, Justice.

The plaintiff appellant in his brief admitted that the defendant Deal's attorney, Bedford W. Black, 'was guilty of neglect, and even gross neglect. It is doubted that there has ever been a case before this Court where the neglect of the attorney was as great and as gross as the neglect of the defendant's attorney in this case.' That defendant's attorney Black was guilty of inexcusable neglect of his client Deal's case is not debatable.

We have had many cases for decision as to when relief will be afforded to a client against whom a judgment by default has been rendered by the negligence of his attorney. The following general principles of law seem to be established by our decisions.

We held as far back as 1871 in Griel v. Vernon, 65 N.C. 76, that an attorney's neglect to file a plea is a surprise on the client whose failure to examine the record to ascertain that it had been filed is an excusable neglect.

We have held in a number of cases since that ordinarily a client is not charged with the inexcusable neglect of his attorney, provided the client himself has exercised proper care. Rierson v. York, 227 N.C. 575, 42 S.E.2d 902; Meece v. Commercial Credit Co., 201 N.C. 139, 159 S.E. 17; Helderman v. Hartsell Mills Co., 192 N.C. 626, 135 S.E. 627; Grandy v. Carolina Metal Products Co., 175 N.C. 511, 95 S.E. 914; Schiele v. North State Fire Ins. Co., 171 N.C. 426, 88 S.E. 764. 'We have consistently held that where the negligence is that of the attorney, and not of the client against whom a judgment by default is rendered, relief will be afforded the latter.' Holland v. Edgecombe Benevolent Ass'n, 176 N.C. 86, 97 S.E. 150. See also Gunter v. Dowdy, 224 N.C. 522, 31 S.E.2d 524.

'In considering the propriety of the order entered on the hearing of defendant's motion, we must remember that the excusability of the neglect on which relief is granted is that of the litigant, not that of the attorney. The neglect of the attorney, although inexcusable, may still be cause for relief.' Rierson v. York, supra [227 N.C. 575, 42 S.E.2d 903], and cases cited.

The standard of care required of the litigant is that which a man of ordinary prudence usually bestows on his important business. Whitaker v. Raines, 226 N.C. 526, 39 S.E.2d 266; Johnson v. Sidbury, 225 N.C. 208, 34 S.E.2d 67; Jones-Onslow Land Co. v. Wooten, 177 N.C. 248, 98 S.E. 706.

The attorney employed 'must be one licensed to practise in this state, and his negligence on which the prayer for relief is predicated must have been some failure in the performance of professional duties which occurred prior to and was the cause of the judgment sought to be vacated.' 26 N.C.Law Review, p. 85. Manning v. Roanoke & T. Railroad Co., 122 N.C. 824, 28 S.E. 963; Beaufort Lumber Co. v. Cottingham, 173 N.C. 323, 92 S.E. 9.

A further requirement seems to be that the lawyer employed must be reputable, skilled and competent, and that the client must impart to him facts constituting his defense. Sutherland v. McLean, 199 N.C. 345, 154 S.E. 662; Helderman v. Hartsell Mills Co., supra. However, the mere employment of counsel is not enough. Hyde County Land & Lumber Co. v. Thomasville Chair Co., 190 N.C. 437, 130 S.E. 12. The client may not abandon his case on employment of counsel, and when he has a case in court he must attend to it. Roberts v. Allman, 106 N.C. 391, 11 S.E. 424; Pepper v. Clegg, 132 N.C. 312, 43 S.E. 906.

The party seeking to set aside a default judgment must be without fault. Kerr v. North Carolina Joint Stock Land Bank of Durham, 205 N.C. 410, 171 S.E. 367, Abbitt v. Gregory, 195 N.C. 203, 141 S.E. 587.

The defendant must have a real or substantial defense on the merits, otherwise the court would engage in the vain work of setting a judgment aside when it would be its duty to enter again the same judgment on motion of the adverse party. Perkins v. Sykes, 233 N.C. 147, 63 S.E.2d 133; Van Hanford v. McSwain, 230 N.C. 229, 53 S.E.2d 84; Stephens v. Childers, 236 N.C. 348, 72 S.E.2d 849.

The findings of fact by the trial court upon the hearing of a motion to set aside a judgment under G.S. § 1-220 are conclusive on appeal when supported by any competent evidence. Carter v. Anderson, 208 N.C. 529, 181 S.E. 750; Craver v. Spaugh, 226 N.C. 450, 38 S.E.2d 525; Van Hanford v. McSwain, supra.

The conclusions of law made by the judge upon the facts found by him are reviewable on appeal. Abbitt v. Gregory, supra; Van Hanford v. McSwain, supra; McIntosh N.C.Prac. & Proc., p. 743.

The trial court found as facts that six months prior to the institution of this action the defendant engaged Bedford W. Black of Kannapolis, North Carolina who was a reputable attorney, to represent him in all matters growing out of the collision between the vehicles of the plaintiff and the defendant on January 26, 1952; that Black completely neglected his client's interests, in failing to file an answer within the time allowed by law, and further neglected his duties as an attorney in failing to take steps to protect his client from judgment by default and inquiry or from trial upon the inquiry. At all times the defendant was constantly in communication with his lawyer who assured him that he was taking care of the matter and the court finds as a fact that the defendant has been guilty of no neglect whatever, and that under the circumstances the neglect of Black is not imputable to the defendant. There was plenary competent evidence to support such findings, and the lower court's conclusions are in accord with our decisions. The plaintiff in his brief admits Black was guilty of gross neglect. 'The negligence of the attorney, upon the facts found, even if conceded, will not be imputed to defendant, who was free from blame.' Helderman v. Hartsell Mills Co., supra.

The trial lower court also found that the defendant has a good and meritorious defense, though he did not find the facts showing a meritorious defense. In Parnell v. Ivey, 213 N.C. 644, 197 S.E. 128, it is said: 'As to meritorious defense the finding was 'and that defendants have a meritorious defense to the pending action.' This is not sufficient; there should be a finding of the facts showing a meritorious defense.'

We do not consider affidavits for the purpose of finding facts ourselves on motions of this sort. Cayton v. Clark, 212 N.C. 374, 193 S.E. 404; Gardiner v. May, 172 N.C. 192, 89 S.E. 955; Holcomb v. Holcomb, 192 N.C. 504, 135 S.E. 287.

Sutherland v. McLean, supra, is a case where a motion was made under C.S. § 600, now G.S. § 1-220, to set aside a default judgment on the ground of negligence of the attorney. We quote from that case [199 N.C. 345, 154 S.E. 665]. 'The point is made that the trial judge did not find that the defendant had a meritorious defense. There are decisions to the effect that a failure to make such finding is fatal. There are decisions to the contrary. For instance, in English v. English, 87 N.C. 497, this court said: 'Nor can we give our assent to the proposition that before setting aside the judgment, it was the judge's duty to have ascertained as a fact, whether there existed a meritorious defence to the action, since that would necessitate a trial by the court, of all the issues involved, and be to anticipate the very purposes of the motion. The affidavit of the defendant sets forth facts which establish a prima facie defence, and that is all the law requires.'

'Indeed it is the duty of the court to state the facts constituting the defense in order that the Supreme Court may determine the merit of the question. Winborne v. Johnson, 95 N.C. 46; Vick v. Baker, 122 N.C. 98, 29 S.E. 64; Gaylord v. Berry, 169 N.C. 733, 86 S.E. 623, 624.

'In the Gaylord Case, supra, the court examined the affidavits filed and found therefrom a meritorious defense, although the trial judge found to the contrary and remanded the case for 'fuller findings of fact, with leave to file additional affidavits, if the parties are so advised.'

'In those cases in which no answer has been filed the nature of the defense must necessarily be presented by affidavits. In such event it would be necessary for the trial judge to find whether or not there was a meritorious defense. But in cases where the pleadings have been filed an inspection of the pleading itself will disclose to the reviewing court that a meritorious defense was alleged. This perhaps explains the irreconcilable ruling of the court upon the subject. In support of this view it is perhaps more than significant that the following cases: Bowie v. Tucker, 197 N.C. 671, 150 S.E. 200; Dell School v. Peirce, 163 N.C. 424, 79 S.E. 687; McKeel Hardware Co. v. Buhmann, 159 N.C. 511, 75 S.E. 731; Norton v. McLaurin, 125 N.C. 185, 34 S.E. 269; Taylor [& Fetzer] v. Gentry, 192 N.C. 503, 135 S.E. 327; Albertson v. Terry, 108 N.C. 75, 12 S.E. 892; Holcomb v. Holcomb, 192 N.C. 504, 135 S.E. 287--were all cases in which no answer had been filed; and in these cases the absence of a finding of meritorious defense has been featured.

'In the case at bar an answer was filed in apt time and is here before us. An examination of the answer discloses that facts are alleged, which, if believed, would constitute a meritorious defense.'

In this case a verified motion to set aside the judgment by default and inquiry and the verdict and judgment on the inquiry under G.S. § 1-220 was made by the defendant. An examination of this motion discloses that facts are stated, which if believed, would constitute a meritorious defense. It would seem under the authority of Sutherland v. McLean that the order of the...