Sutherland v. McLean

• Court: North Carolina Supreme Court
• Writing for the Court: BROGDEN, J.
• Citation: Sutherland v. McLean, 199 N.C. 345, 154 S.E. 662 (N.C. 1930)
• Decision Date: 10 September 1930
• Docket Number: 366.
• Parties: SUTHERLAND v. McLEAN et al.

154 S.E. 662

199 N.C. 345

SUTHERLAND v. McLEAN et al.

No. 366.

Supreme Court of North Carolina

September 10, 1930

Appeal from Superior Court, Ashe County; Clement, Judge.

Action by John B. Sutherland against R. C. McLean and another. Judgment for plaintiff, and the named defendant appealed from an order denying a motion to set aside the judgment.

Reversed.

The plaintiff instituted an action in Ashe county against the defendants. The appealing defendant, R. C. McLean, was at the time of the commencement of the action a citizen of Gaston county. The summons was issued out of the superior court of Ashe county on June 17, 1927, and a verified complaint was duly filed on said date. The summons was served on both defendants on June 20, 1927. When the summons and complaint were served, the appealing defendant employed Mangum & Denny a firm of reputable lawyers living in Gaston county. He disclosed to his attorneys all the facts constituting his defense, and they prepared an answer which was duly filed in the superior court of Ashe county on July 1, 1927. The cause came on for trial at the July term, 1928. Neither of the defendants appeared in person or by attorneys, and upon the verdict of the jury judgment was entered against the defendant for the sum of $885.75, with interest and costs. On November 21, 1928, the defendant McLean, after due notice made a motion before the clerk to set aside said judgment on the ground of mistake, inadvertence, surprise, and excusable neglect, as provided by C. S. § 600. The clerk overruled the motion of the defendant, and he appealed to the judge of the superior court. The judge found three facts, to wit: (1) That the appealing defendant, McLean, employed the firm of Mangum & Denny, attorneys at law, to represent him in the trial of the cause; (b) that the defendant did not employ any local counsel in regular attendance upon the superior court of Ashe county; (c) that the firm of Mangum & Denny did not regularly attend the superior court of Ashe county.

Upon the foregoing facts the judge refused to set aside the judgment, and the defendant McLean appealed.

W. H Sanders, of Gastonia, and W. R. Bauguess, of Jefferson, for appellant McLean.

T. C Bowie, of Jefferson, for appellee.

BROGDEN J.

The case presents a single proposition of law, to wit: What duty does the law impose upon a defendant in a civil action with reference to the preparation and trial of his cause?

There are a host of decisions in this state upon the subject, and many of them are totally irreconcilable. However, it is fairly clear that two imperative duties are imposed upon a defendant in a civil action: First, he must give to the litigation such attention "as a man of ordinary prudence usually bestows upon his important business." This principle is announced in many cases, of which the following are illustrative: Kerchner v. Baker, 82 N.C. 169; Pepper v. Clegg, 132 N.C. 312, 43 S.E. 906; Jernigan v. Jernigan, 179 N.C. 237, 102 S.E. 310; Hyde County Land & Lumber Co. v. Chair Co., 190 N.C. 437, 130 S.E. 12. Second, the defendant must employ counsel.

In Manning v. R. R., 122 N.C. 824, 28 S.E. 963, 964, this court said: ""Litigation must ordinarily be conducted by means of counsel, and hence, if there is neglect of counsel, the client will be held excusable for relying upon the diligence of his counsel, provided he is in no default himself. *** He must, however, now 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 at least entitled to practice in said court and engage to go thither." Another portion of the same opinion declares: "Besides, even if the general counsel of the defendant to whom the summons was sent had been counsel regularly authorized and empowered to practice in the courts of this state, it does not appear that he was in the habit of attending regularly the courts of Bertie county, or especially agreed to attend the term of said court on this matter, and, in the absence of such proof, the defendant has not shown that it has paid proper attention to the case, and that its neglect was excusable, and this burden was on the defendant."

Apparently this case was the first to intimate that home geography had anything to do with the efficiency or diligence of counsel in representing clients. Moreover, the Manning Case involved the employment of an attorney who was a nonresident of North Carolina, and therefore had no right to practice in our courts, and who did not habitually practice therein.

Again in Bank v. Palmer, 153 N.C. 501, 69 S.E. 507, this court said: "It has been held by this Court that a party litigant, 'who seeks to be excused for laches on the ground of excusable neglect, must show that the counsel employed is one who regularly practices in the court where the litigation is pending, or at least one who is entitled to practice therein, and was especially engaged to go thither and attend to the case" D'--citing Manning v. R. R. The Palmer Case also involved the employment of a nonresident attorney.

Up to this point, the duty imposed upon a defendant was to employ an attorney who either practiced regularly in the county where the litigation was pending or who was entitled to practice therein and was especially engaged to go thither, but this rule is tremendously expanded in later cases. Thus, in Jernigan v. Jernigan, 179 N.C. 237, 102 S.E. 310, 312, the court says: "It further appears that he employed attorneys not residing in Harnett county, where the case was pending, and not practicing in its courts. The learned judge could consider this fact upon the question of negligence." In the Jernigan Case, suit was brought in Harnett and the defendant employed able and reputable counsel at Smithfield in Johnston county, only a few miles away.

Again, in Cahoon v. Brinkley, 176 N.C. 5, 96 S.E. 650, 652, this court said: "Where the defendant employs a counsel nonresident in this state, or even counsel in this state who does not reside in the county of trial, or who does not habitually attend that court, the judgment, for want of an answer, will not be set aside, for such neglect is inexcusable."

It is apparent, therefore, that the home geography rule was not at first contemplated; but, according to these decisions, it is the duty of a defendant, even though he employs reputable and efficient counsel in one county, to also employ local counsel residing in the county where the cause is to be tried. Under this rule, if a defendant relies upon the home grown product, he is safe from the penalty of negligence; but if he relies upon a reputable attorney, duly authorized to practice in all the courts of North Carolina, but who does not happen to be affected by the local geography of the trial, he must suffer the consequence of his negligent act.

The rule requiring a litigant to employ local counsel was apparently built upon the idea that the counties of the state were foreign jurisdictions with respect to each other, and harks back to a time when transportation facilities and intercommunication in the state were crude and ineffective, thus rendering it practically impossible for a lawyer to attend to business beyond the range of his immediate vicinity. This conception was expressed in Cogdell v. Barfield, 9 N. C. 332, decided in 1823. In that case the defendant employed a lawyer in Duplin to appear and defend a case in Sampson. The attorney failed to discharge his duty. The court declared that the defendant was entitled to no relief because he "incurred the risk of a counsel's attendance who did not practice in the Court, while he was told of others that would be in attendance." This, of course, is a quaint doctrine as it seems the defendant was penalized for failure to take the advice of volunteers who undertook to recommend good laywers that could endure the hardship of the journey of a few miles from Duplin to Sampson. Nevertheless, it is quite apparent that the ideas of professional diligence and contacts with the court, obtaining over one hundred years ago, are still invoked to measure the professional responsibility of attorneys in this modern day of changed conditions and changed professional obligations.

The true rule was first expressed in Griel v. Vernon, 65 N.C. 76. This court declared: "In this case the party retained an attorney to enter a plea for him; that an attorney should fail to perform an engagement to do such an act as that, we think may fairly be considered a surprise on the client; and that the omission of the client to examine the records in order to ascertain that it had been done, was an excusable neglect."

Again, in Taylor v. Pope, 106 N.C. 267, 11 S.E. 257, 258, 19 Am. St. Rep. 530, the defendant attended court, but was assured by this attorney that "he would attend to the case." Relying upon such assurance, he left the court, and judgment was taken against him. This court held that the judgment should have been vacated.

In Seawell v. Lumber Co., 172 N.C. 320, 90 S.E. 241 242, the defendant employed counsel in Duplin to take charge of a suit instituted in Robeson county. The attorney so employed failed to secure counsel in Robeson county, and judgment was entered. Upon motion duly made to set the judgment aside upon the ground of excusable neglect, this court said: "The distinction between the negligence of counsel, while engaged in the performance of a professional duty, and the negligence of the party, is clearly marked, and the uniform rule with us is that the negligence of the first will not be attributed to the client, if he, himself, is in no fault, and this is true without regard to the solvency or insolvency of counsel." Again, it is said in the opinion "that the...