Whitaker v. Raines
| Decision Date | 18 September 1946 |
| Docket Number | NO. 91.,91. |
| Citation | 39 S.E.2d 266 |
| Parties | WHITAKER. v. RAINES et al. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Buncombe County; Felix E. Allee, Judge.
Action by Vollie S. Whitaker against George Raines and Jo Alice Raines to recover possession of certain realty, wherein judgment was rendered for plaintiff. Thereafter the defendants moved to set aside the judgment on ground of excusable neglect. From a judgment allowing the motion, the plaintiff appeals.
Judgment reversed.
Motion by defendants to set aside judgment on the ground of excusable neglect. Motion allowed and plaintiff appealed.
Sanford W. Brown, of Asheville, for plaintiff.
Don C. Young, of Asheville, for defendants.
The question here presented is whether the facts appearing in the record were such as to justify the court below in setting aside the judgment theretofore rendered in the cause on the ground of excusable neglect.
The parties are all residents of Buncombe County. The plaintiff instituted this action July 10, 1945, to recover possession of one acre of land, alleging title in himself and wrongful withholding by defendants. Personal service of summons with copy of verified complaint was had on defendants July 11, 1945. At request of defendants time to answer was extended to August 25, and again for 30 days thereafter. No answer was filed (G.S. § 1-125), or bond given as required by G.S. § 1-111, or affidavit made that defendants were unable to give bond as allowed by G.S. § 1-112. December 31, 1945, more than three months after extended time for answering had expired, counsel for plaintiff wrote defendants' counsel that unless answer was filed on or before January 10, 1946, plaintiff would ask for judgment by default. On January 10, 1946, counsel filed an unverified answer on behalf of defendants (G.S. § 1-144), but without bond or application for leave to defend without bond. Counsel for plaintiff thereupon served notice on defendants' counsel that plaintiff would at February Term, 1946, move for judgment. The case was calendared for February 11, 1946. When reached, the unverified answer was stricken out and judgment rendered for plaintiff. G.S. § 1-211; G.S. § 1-111. Counsel for defendants was in the bar at the time and did not interpose objection.
March 30, 1946, defendants filed motion to set aside the judgment under G.S. § 1-220, alleging as grounds therefor that there had been negotiations between counsel for settlement and that defendants did not receive letters from counsel advising them that negotiations had failed, either in November, December or January, and did notknow the cause was calendared for hearing at the February Term; and further that during the two weeks of the February Term the male defendant George Raines was sick and confined to his home. A meritorious defense was alleged. Plaintiff replied setting out in detail his efforts to get defendants into court, and alleged that after notice had been given defendants' counsel of record that the case was calendared for the February Term counsel for defendants stated he had been unable to get his clients to respond or communicate with him and he could not resist judgment; further plaintiff testified that on February 11 he saw defendant George Raines on the road between his home and Asheville, and knew he was not sick and confined to his home on that day.
The court allowed the defendants' motion to set aside the judgment, "being of opinion from the evidence offered that defendants did not have notice that the action was on the calendar for...
To continue reading
Request your trial
-
Moore v. Deal
...of care required of the litigant is that which a man of ordinary prudence usually bestows on his important business. Whitaker v. Raines, 226 N.C. 526, 39 S.E.2d 266; Johnson v. Sidbury, 225 N.C. 208, 34 S.E.2d 67; Jones-Onslow Land Co. v. Wooten, 177 N.C. 248, 98 S.E. 706. The attorney empl......
-
In re Laughinghouse
...the lawsuit once the matter was turned over to the attorney. Meir v. Walton, 2 N.C.App. 578, 163 S.E.2d 403 (1968); Whitaker v. Raines, 226 N.C. 526, 39 S.E.2d 266 (1946); Howard v. Williams, 40 N.C.App. 575, 252 S.E.2d 571 (1979). Relief has also been denied where the client did not place ......
-
Pate v. R. L. Pittman Hospital
...of his inattention, as against a diligent suitor proceeding in accordance with orderly procedure fixed by statute. Whitaker v. Raines, 226 N.C. 526, 39 S.E.2d 266; Johnson v. Sidbury, supra, 225 N.C. 208, 34 S.E.2d 67; Jernigan v. Jernigan, 179 N.C. 237, 102 S.E. 310; Hales-Bryant Lumber Co......
-
Wilson v. Chandler
...348, 72 S.E. 2d 849; Perkins v. Sykes, 233 N.C. 147, 63 S.E.2d 133; Van Hanford v. McSwain, 230 N.C. 229, 53 S.E.2d 84; Whitaker v. Raines, 226 N.C. 526, 39 S.E.2d 266; Johnson v. Sidbury, 225 N.C. 208, 34 S.E.2d Since there is no showing or finding in the court below that the appellee's fa......