Stockton v. Wolverine Gold Min. Co.

• Decision Date: 14 May 1907
• Citation: 57 S.E. 335,144 N.C. 595
• Parties: STOCKTON v. WOLVERINE GOLD MINING CO.
• Court: North Carolina Supreme Court

57 S.E. 335

144 N.C. 595

STOCKTON v. WOLVERINE GOLD MINING CO.

Supreme Court of North Carolina

May 14, 1907

Appeal from Superior Court, Rutherford County; Guion, Judge.

Action by George A. Stockton against the Wolverine Gold Mining Company. From an order setting aside judgment by default and inquiry for excusable neglect, plaintiff appeals. Reversed.

R. S Eaves, for appellant.

Gallert & Carson, for appellee.

CLARK C.J.

Appeal from an order setting aside a judgment by default and inquiry for excusable neglect, under Revisal 1905, § 513 (Code 1883 § 274). Upon the facts found, which finding is conclusive on us, the judge decides whether as a matter of law that there was or was not excusable neglect. From this conclusion of law an appeal lies. Norton v. McLaurin, 125 N.C. 185, 34 S.E. 269; Pepper v. Clegg, 132 N.C. 313, 43 S.E 906. Under Code 1883, § 274, if the judge correctly adjudged that there was excusable neglect, then whether he should set aside the judgment rested in his unreviewable discretion. Morris v. Insurance Co., 131 N.C. 213, 42 S.E. 577, and cases cited. In Revisal 1905, § 513, the word "shall" is substituted for "may in his discretion" which was used in Code 1883, § 274. Whether this does not take away the discretion of the judge, when he has correctly adjudged that there was excusable neglect upon the facts found, is not now before is, as the judge, having found there was excusable neglect, set aside the judgment, and the plaintiff's appeal presents only the question whether the neglect was excusable.

It is found by the judge that summons issued August 4, 1906, and that at August term an alias issued which was returned duly served at October term, when by consent time was allowed to file complaint and answer. Complaint was filed in December. In the latter part of that month, a bar meeting was held to set a calendar for February term. Plaintiff's counsel notified defendant's counsel that the complaint was on file, and asked to set this case for trial; but, on the latter's objection that the answer was not in plaintiff's counsel requested that the answer should be filed as soon as possible, and defendant's counsel assured him that this would be done. A few days later plaintiff's counsel again called the matter to the attention of defendant's counsel and received the same assurance. The defendant was a mining company operating in this state, and in Rutherford county, but chartered in the District of Columbia, and with its principal office in Alpena, Mich. The defendant's counsel in this state were not intrusted with the duty of filing the answer, and they sent a copy of the complaint to the defendant's general counsel in Alpena in December to prepare and forward answer. This was not done, and at February term the plaintiff moved for and obtained judgment by default and inquiry; the complaint being unverified, and the demand being for unliquidated damages. The defendant had two local counsel. One of them, being a member of the General Assembly then in session, was present only three days of that term of court; but the other was present the whole term, and indeed in court when the judgment by default was asked for and rendered. It does not appear whether he asked the judge then to extend time to file answer, under Revisal 1905, § 512; but, if he did, the court thought the motion should be denied, as he gave judgment by default and inquiry. It is clear that there was no neglect of any kind on the part of either of the counsel in this state. But there was the grossest neglect either on the part of the defendant itself, whether it was in North Carolina, District of Columbia, or Michigan, or on the part of its general counsel in Alpena, Mich., to whom it saw fit to intrust the filing of its answer, instead of to its capable and reliable counsel in this state. We had occasion to condemn this "leisurely, kid glove, and dilettante style of attending to legal proceedings at long range." Manning v. Roanoke & T. R. R. Co., 122 N.C. 831, 28 S.E. 963. We there repeated (page 828 of 122 N. C., page 964 of 28 S. E.), citing several previous authorities, that the party to an action must "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 entitled to practice in said court and engage to go thither," and (Id., on page 829 of 122 N. C., page 964 of 28 S. E.) said: "If the...