Taylor v. Pope

• Decision Date: 31 March 1890
• Court: North Carolina Supreme Court
• Parties: Taylor et al. v. Pope.

11 S.E. 257

106 N.C. 267

Taylor et al.

v.Pope.

Supreme Court of North Carolina.

March 31, 1890.

Opening Default—Excusable Neglect—Appeal.

1. Defendant employed counsel in an action against him, and attended court at the return-term for four days, to attend to his suit, and then left, after putting his counsel in possession of his defense, and being assured by him that he would attend to his case. The attorney failed to look after the case, thinking the action had been brought to another county, where, properly, it should have been brought, and judgment was taken by default. The case was regularly docketed, and could have been found by inspection. Held excusable neglect, within the meaning of Code N. C. § 274, which provides that the court may, in its discretion, within one year after notice thereof, relieve a party from a judgment taken against him through such neglect.

2. The objection that defendant failed to file the undertaking required by Code N. C. § 237, in order to enable him to plead, and that this was no part of his counsel's duty, does not justify a reversal of the order setting aside the judgment, as the court, in view of the misleading facts and diligence of defendant, might very properly have extended the time for filing the undertaking had the attorney entered his appearance, and asked for it.

3. The supreme court cannot review the exercise of discretion by the court below in setting aside a judgment because of excusable neglect, when, in any reasonable view of the case, the facts sustain the finding.

4. The adoption by the court of the findings of fact previously made by another judge on a motion to set aside a default is not subject to the objection that the court did not consider all the evidence, and properly find the facts, when the court states that, " after a careful consideration of the evidence on both sides, " it concurs with the findings already made.

Appeal from superior court, Cumberland county; Shipp, Judge.

Action by I. W. Taylor and wife against Henry Pope to recover a tract of land. Code N. C. § 274, provides that a. judge of the superior court may, "in his discretion or 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."

T. H. Sutton and F. P. Jones, for appellants.

R. P. Buxton, for appellee.

Merrimon, C. J. This is a motion to set aside a judgment obtained by the plaintiffs for want of an answer, because of excus-able neglect, as allowed by the statute. Code, § 274. The following is the material part of the entry, and the findings of fact by the court, and its judgment thereupon: "Motion to set aside judgment by default rendered at May term, 1888, being the same cause heard and allowed by his honor James E. Shepherd, at chambers, at Wadesborough, September 7, 1888, reported in 101 N. C. 368, 7 S. E. Rep. 795, and now heard, by agreement of counsel, upon the merits, in open court; William M. Shipp, J., presiding. After a careful consideration of the evidence, by affidavits on both sides, I concur in the finding of facts as stated and on file by his honor, Judge Shepherd, and also concur in his conclusions at law, " which are as follows: "That the defendant was duly served with a summons in this case, returnable to the May term, 1888, of the superior court of Cumberland county. That, before said term the defendant employed an attorney who practiced in said county, and paid him a retainer to attend to this case. That he and his attorney were both present at said term, — the defendant remaining four days, his attorney remaining longer. The defendant knew of the pendency of this suit at said term, and reminded his attorney of it, and relied upon him to advise him as to all things necessary to its defense, and depended upon him for instructions as to what should be done. That his attorney assured him that he would attend to the case The defendant put his counsel in full possession of the facts relied upon for his defense, and showed him his deeds constituting his title. That after remaining at said court four days he left, under the assurance of his said attorney that he would attend to the case, and that all would be done that was necessary. That the attorney failed to attend to the case, and judgment was rendered by default against the defendant. That defendant has, apparently, a meritorious defense. That a verified complaint was filed on the second day of the said May term, and no answer, bond, or affidavit in lieu of a bond, were filed. That the attorney looked for the case on the docket, but erroneously supposed that the suit was brought to Harnett county. That the case was regularly docketed, and could have been found by a careful inspection." The court therefore gave judgment as follows. "It is considered and adjudged that said judgment by default be set aside, and that defendant be allowed to file answer; he having already, in compliance with the terms imposed, having paid the costs, and filed bond, approved by the clerk, for costs and damages. " From this judgment the plaintiffs, having excepted, appealed to this court.

This court has no authority to review, change, or modify in any respect, the findings of fact by the court below in matters purely legal in their nature. Coates v. Wilkes, 92 N. C. 376. Nor has it such authority in motions to vacate orders of arrest, warrants of attachment; to set aside judgments because of mistakes, inadvertence, excusable neglect, and the like. Clegg v. Soapstone Co., ...