Osborn v. Leach
| Decision Date | 17 November 1903 |
| Citation | 45 S.E. 783,133 N.C. 427 |
| Parties | OSBORN v. LEACH. |
| Court | North Carolina Supreme Court |
On rehearing. Affirmed.
For former opinion, see 45 S.E. 1037.
A defendant properly served engaged counsel who did not frequently attend the court from which the summons issued and were not regularly in attendance thereon, who prepared a demurrer, which he testified he mailed to the clerk with defendant's knowledge; but the records did not show that any demurrer or other pleading was filed, and the clerk had no recollection of receiving any. Judgment was taken by default and inquiry, and no counsel appeared for defendant for five terms of court thereafter, and during the sixth term a motion was made to set aside the judgment. Defendant did not learn of the judgment until the term at which the motion was made, when he went to the place where the court was sitting, and employed counsel thereon. Held, that defendant's neglect was inexcusable.
J. T Morehead and King & Kimball, for appellant.
F. H Busbee & Son and J. A. Barringer, for appellee.
This is a petition to rehear this case, in which the judgment below was affirmed at the last term by a per curiam decision. 132 N.C. 1149, 45 S.E. 1037. Per curiam decisions are made after as full consideration by the court as those in which opinions are filed, but, the principles involved being well settled it is not deemed necessary to duplicate reasons which are to be found in other opinions. On reargument we see no reason to change our former conclusion. This was an appeal from a refusal to set aside a judgment by default and inquiry on the ground alleged of excusable neglect. Code, § 274. The affidavits of both sides are sent up in the record, but improperly, for we cannot consider them, since the findings of fact by the judge are conclusive on appeal. Norton v. McLaurin, 125 N.C. 185, 34 S.E. 269; Sikes v. Weatherly, 110 N.C. 131, 14 S.E. 511; Albertson v. Terry, 108 N.C. 75, 12 S.E. 892; Weil v. Woodard, 104 N.C. 94, 10 S.E. 129; and other cases cited in Clark's Code (3d Ed.) p. 311. The facts found by the judge are, in substance, that the appellant and another, both living in Raleigh, were served in due time before court with a summons in an action for libel returnable to June term, 1901, of Guilford superior court. His codefendant appeared by counsel, obtained extension of time for answering, and filed answer at the next succeeding term. The appellant made no appearance by attorney or in person, filed no answer or other pleading, and the plaintiff, having filed a verified complaint, took judgment by default and inquiry. When the summons was served upon the appellant, he applied to a law firm in Raleigh, who told him they did not attend regularly the courts in Guilford, but advised him to employ another counsel, also residing in Raleigh, who frequently attended the Guilford courts, and the appellant did so, said counsel drawing a demurrer, which, according to his best impression, was immediately upon being drafted mailed to the clerk of the superior court of Guilford, but whether addressed to J. N. Nelson (the name of such clerk) said counsel is not certain, but he took the demurrer, stating at the time he would mail it, whereupon said law firm told the appellant that, as the case stood on a matter of law, it would not be necessary for him to go to Guilford court till notified by counsel, as that docket was crowded, and the case could not be reached in some time. The records of the court fail to show any demurrer or other pleading having been filed by the appellant, and the clerk has no recollection of ever receiving any by mail or otherwise. The judge further finds that neither the law firm first employed by the appellant nor the other counsel called in on their recommendation attended Guilford superior court regularly, though the latter usually did so; that regular terms of the superior court were held in Guilford in June, August, September, October, and December, 1901, and January, 1902, as provided by law, at none of which (six consecutive terms) any counsel for appellant was present. At the February term, 1902--being the sixth term after that at which the judgment was taken--a motion to set it aside was made by a counsel resident in Greensboro, who was then first employed by the appellant. The appellant did not learn of the judgment by default and inquiry till said February term, 1902, at which time, said counsel being confined to his bed by illness, the appellant went to Greensboro in person, and employed counsel there to move to vacate the judgment, and that the appellant has a meritorious defense.
Upon the above facts his honor properly held that the negligence of the appellant was not excusable. This court has always held that, to hold a party excusable when his counsel has been negligent, he must have employed counsel ""regularly attending the court" in which the action is pending, or "who engages to go there specially to attend to the matter." Manning v. Railroad, 122 N.C. 828, 28 S.E. 963. Here the judge finds that neither of the counsel spoken to by the appellant regularly attended Guilford superior court, and neither engaged to go there to attend to filing the demurrer, for the client understood that the paper was to be sent by mail. Had the appellant employed counsel regularly attending that court, or engaged counsel specially to attend June term, 1901, such counsel would have known that the demurrer was not filed, and could have filed it at any time up to the moment of adjournment, and...
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