Stallings v. Spruill

• Decision Date: 02 October 1918
• Docket Number: 98.
• Parties: STALLINGS ET UX. v. SPRUILL.
• Court: North Carolina Supreme Court

96 S.E. 890

176 N.C. 121

STALLINGS ET UX. v. SPRUILL.

No. 98.

Supreme Court of North Carolina

October 2, 1918

Appeal from Superior Court, Halifax County; Kerr, Judge.

Action by C. C. Stallings and wife against Mrs. S. F. Spruill. From an order setting aside a default judgment, plaintiffs appeal. Reversed.

Generally where a party to an action employs a reputable attorney and is guilty of no negligence himself, the attorney's negligence in failing to appear and answer will not be imputed to such party in proceeding to vacate default judgment, but law will excuse the party and afford him relief.

R. C Dunn, of Enfield, and Murray Allen, of Raleigh, for appellants.

George C. Green, of Weldon, and J. P. Pippen, of Littleton, for appellee.

BROWN J.

This is a processioning proceeding to determine and establish the true division line between the lands of plaintiff and defendant. It was returnable before the clerk December 12 1916. The complaint was filed, duly verified, on December 4 1916. On return day defendant failed to answer, and the cause was continued from time to time to permit defendant to file answer, and until January 29, 1917, when the clerk, upon motion of plaintiff, rendered judgment for failure of defendant to file answer.

It appears from the findings of fact that the summons was given to M. C. Braswell, general agent for defendant, who is a resident of New Jersey. Braswell sent summons to defendant who admitted service in writing on the back and sent it to Braswell, who sent it to R. C. Dunn, plaintiff's attorney. Braswell did not employ an attorney for defendant, but sent J. B. Laughter, the tenant on the land, to Halifax on December 12, 1916, the return day of the summons, to attend to the case. The court finds further, that on that date the clerk informed Laughter that it would be necessary that an answer be filed, and that after the answer was filed the county surveyor would be sent out to the land to run the respective contentions of the plaintiffs and the defendant, and that thereafter the court would hear and examine the true line; that this fact was communicated to Braswell by Laughter. The action was continued from the 12th day of December until a later date, and Laughter was informed by the clerk that it was necessary for the defendant to file an answer; that on said later date the plaintiffs appeared by their attorney, and Laughter also appeared. No answer having been filed, the action was again continued, and Laughter was informed by the clerk and by plaintiff's attorney that it would be necessary that an answer be filed by the defendant, and that, as no answer was filed, the cause was again continued by consent of the plaintiff's attorney until the 29th day of January, 1917; the attorney notifying Laughter that unless answer was filed by the 29th day of January, 1917, he would move the court for judgment establishing the line between the plaintiffs and the defendant as set out in the petition of the plaintiff. This was not communicated to Braswell by Laughter. The further fact is found that Braswell has for years been attending to the business of Mrs. Spruill in North Carolina, and she expected him to employ an...