Appeal
from superior court, Perquimans county; WHITAKER, Judge.
The
plaintiffs having filed their complaint, the defendant filed
his demurrer to the same. The court held that this demurrer
was frivolous, and the defendant excepted, declaring his
purpose to appeal to this court. He then at once moved the
court to allow him to file an answer to the complaint, but
this motion was denied upon the ground that the court
"had no power to permit the answer to be filed."
The court then gave judgment for the plaintiffs, and the
defendant, having excepted thereto, appealed to this court
but he abandoned and failed to prosecute his appeal. Within a
few days, and within 12 months next after the rendition of
the judgment, the defendant, in vacation, filed his petition
in the action, the material part of which is as follows
"(1) At the trial, when your honor overruled
defendant's demurrer, and authorized plaintiffs'
counsel to draw a judgment of recovery against defendant for
the amount demanded in the complaint of plaintiffs, the
defendant, this petitioner, understood your honor to refuse
his application to be allowed to file an answer, and was thus
surprised and misled as to the proper course to be pursued by
him in the management of his case. (2) After the trial, the
defendant, your petitioner, discovered evidence that would
have had a very material effect, as he believes, in modifying
the judgment aforesaid, if it had been before the court upon
a trial of the case upon its merits. That evidence was the
written receipt of Thomas G. Skinner, one of the plaintiffs
in said action, for seventy-five dollars in full of all fees
down to September 23, 1887, and the written receipt of the
other plaintiff, J. H. Blount, for twenty dollars. Said
receipts are herewith filed as a part of this petition. That
said plaintiffs' services after that date were less
onerous, and not more efficient than they had previously
been. That at the time of the trial, this petitioner did not
know of the existence of the said written receipts, and
discovered them by accident, while searching for other papers
after the adjournment of court. He could not, by the exercise
of due diligence, have discovered this evidence in time for
the trial. (3) That the enforcement of the judgment aforesaid
would inflict, as your petitioner feels, a most inequitable
hardship upon him; that a trial of the case upon its merits
could, at most, work no other injury to the plaintiffs than a
brief postponement of their demands, provided said demands
should be ultimately determined in their favor by the court
and that your petitioner believes, and accordingly avers
that, upon a full and fair trial of the case upon its merits,
the judgment aforesaid would be most materially reduced in
amount, if not entirely reversed. (4) That there was never
any express contract made for the services rendered by
plaintiffs and recovered in said judgment; that the case was
twice appealed to the supreme court by the adverse party, and
that plaintiffs paid no attention to the case in that court,
and that the sum charged by plaintiffs in the suit in which
their services were rendered was grossly excessive in
comparison with the services rendered. Wherefore, in
consideration of the surprise aforesaid, by which your
petitioner was so overwhelmed, as for the time to lose a
judicious control of himself and his case, and in
consideration of the after-discovered evidence above referred
to, and in consideration of the fact that a trial of the case
upon its merits would work no wrong or injury to any of the
parties, your petitioner prays that the judgment aforesaid
may be set aside; that the case may be reinstated upon the
docket; that petitioner may be allowed to file an answer in
the case; and that the case itself may be tried upon its
merits. And for such other and further relief as to justice
and equity may appertain." The plaintiffs each filed
their answer to this petition, and, without objection from
them, the court afterwards heard the motion to set the
judgment aside, the counsel of both parties being present and
debating the same, in a county other than that in whose court
such judgment was given. The court gave judgment, whereof the
following is a copy: "Upon considering the petition and
affidavits and exhibits filed herein, and the facts found, as
above set forth, and the court being of the opinion that it
now has not the power to vacate or to set aside said
judgment, rendered at the spring term, 1890, of Perquimans
superior court, it is ordered that the petition be dismissed
at the cost of the petitioner, Harvey Terry." The
petitioner excepted to the ruling, and appealed to the
supreme court.
MERRIMON
C.J., (after stating the facts as above.)
The
statutory provision, (Code, § 274) invoked by the defendant
provides that "the judge *** may
also, in his discretion, and upon such terms as may be just,
at any time within one year after notice thereof, relieve a
party from a judgment, order, or other proceeding taken
against him through his mistake, inadvertence, surprise, or
excusable neglect," etc. This implies not simply any,
but reasonable, mistake, inadvertence, or excusable neglect
as to, or surprise occasioned by, some fact, or something
that has or has not been done, of which the complaining party
ought to have...
