Allen v. McPherson, 168 N.C. 435 (1915)

March 24, 1915 · Supreme Court of North Carolina

168 N.C. 435

FRANK ALLEN v. A. P. McPHERSON.

(Filed 24 March, 1915.)

1. Judgments — Excusable Neglect — Findings—Appeal and Error.

On appeal from the refusal of a motion to set aside a judgment for excusable neglect, the findings of fact by the trial judge are no.t reviewa^ ble, except in cases of gross abuse or where the findings are not supported by any evidence.

2. Same — Matters of Law.

Upon motion to set aside a judgment for excusable neglect, where tbe findings of fact of tbe trial judge are supported by evidence, whether as a matter of law the neglect was excusable is reviewable on appeal.

3. Same — Court’s Discretion — Interpretation of Statutes.

Where under the findings of fact the trial judge correctly concludes that the neglect of a motion to set aside a judgment was not excusable, it concludes the matter; but where he correctly concludes that the neglect was excusable, the question of setting aside the judgment is a matter in his discretion, except in cases of gross abuse, and is not reviewable on appeal. Revisal, sec. 513.

4. Appeal and Error — Attorney and Client — Laches of Counsel — Duty of Client.

The neglect of counsel, intrusted with the prosecution of an action, is chargeable to the client, for he must personally see that his appeal is regularly prosecuted within the time and in accordance with the rules prescribed.

5. Judgments — Excusable Neglect — Appeal and Error — Meritorious Defense —Findings of Trial Judge.

Upon appeal from the refusal of the trial court to set aside a judgment against a defendant for excusable neglect, a finding is necessary that there is a meritorious defense which could be set up if the judgment is set aside.

6. Judgments — Default and Inquiry — Burden of Proof.

A judgment by' default and inquiry establishes merely the plaintiff’s cause of action, carrying the costs, but still leaves the burden of proof on the plaintiff as to the inquiry.

Allen, J., did not sit.

Appeal by tbe defendant from tbe refusal by Cooke, J., at March Term, 1914, of Wake, of a motion to set aside tbe judgment on tbe ground of excusable neglect.

Armistead Jones & 8on and W. C. Harris for plaintiff.

Charless Boss and W. C. Douglass & Son for defendant.

Clark, C. J".

Tbis was a motion to set aside tbe judgment on tbe ground of excusable neglect. Tbe summons was issued 25 January, 1913. Time to file complaint was extended and it was filed at April Term, 1913. Tbe defendant was allowed till next term to file answer, but be did not tben file answer, and at tbe fifth term after filing tbe complaint tbe plaintiff moved for and obtained judgment by default and inquiry. -Tbe defendant bad employed a lawyer living at Lillington, in Harnett County (where tbe defendant himself lived), and did not employ any resident or local couiisel in Wake, where tbe cause was pending, to represent him. Tbe motion to set aside tbe judgment was not made till November Term, 1913,-of Wake.

On a motion to set aside a judgment for excusable neglect, tbe findings of fact by tbe judge are conclusive and irreviewable, and we cannot look into tbe affidavits to contradict bis findings, except on allegation that there is no evidence to sustain tbe findings, wbicb is not tbe case bere. On tbe findings of fact, whether as a matter of law there was or was not excusable neglect is reviewable on appeal. If tbe judge finds correctly that tbe neglect was not excusable, that concludes tbe matter. If, however, be finds that tbe neglect was excusable, whether in such case be shall set aside tbe judgment is a matter in his discretion, and not reviewable, except in a case of gross abuse. This section (Rev., 513) was analyzed and fully discussed in Norton v. McLaurin, 125 N. C., 185. See, also, citations to that case in tbe Anno. Ed.

In Norton v. McLaurin, supra, tbe Court held: (1) Tbe negligence of counsel will not excuse, if tbe client himself has been neglectful. (2) Before granting an application to set aside a judgment, tbe Court must find, as a material fact, that tbe defendant has a meritorious defense. In this case tbe facts show that tbe client himself was neglectful. A client cannot place bis case in tbe bands of bis counsel and pay no further attention to it. “It is not enough that parties to a suit should engage counsel and leave it entirely in bis charge. They should, in addition to this, give it that amount of attention wbicb a man of ordinary prudence usually gives to bis most important business.” Roberts v. Allman, 106 N. C., 391; Pepper v. Clegg, 132 N. C., 315. See, also, numerous cases cited in that opinion and tbe citations thereto in tbe Anno. Ed. In Pepper v. Clegg, supra, we said: “When a man has a case in court, tbe best thing be can do is to attend to it.” This has been quoted with approval, McClintock v. Ins. Co., 149 N. C., 36, and in Lunsford v. Alexander, 162 N. C., 530.

In S. v. Downs, 116 N. C. (quoted and approved S. v. McLean, 121 N. C., 601; Barber v. Justice, 138 N. C., 21), we said that tbe ignorance of law by counsel would not be an excuse for a client, for if it were, “tbe more ignorant counsel could manage to be, tbe more be might be in demand.” For tbe same reason,-if tbe negligence of counsel were an excuse, when tbe client himself pays no attention to tbe case, then “tbe more negligent counsel could manage to be, tbe more valuable be would become.”

In Manning v. R. R., 122 N. C., 828, we discussed tbe duty of clients to look after their lawsuits and not surrender tbe matter entirely to tbe bands of their counsel, and deprecated tbe system of employing counsel nonresident in tbe county where tbe action is pending, or not regularly attending that court, and^ said: “Our laws do not recognize this leisurely, kid-glove and dilettante manner of attending to legal proceedings at long range.” To same effect, Osborn v. Leach, 133 N. C., 430; Bank v. Palmer, 153 N. C., 503.

It is also essential for the judge to find that the defendant has a meritorious defense which could be set up if the judgment is set aside. Stockton v. Mining Co., 144 N. C., 599, and cases there cited; Minton v. Hughes, 158 N. C., 587. The additional finding that “The defendant denies the obligation set out in the complaint,” is not the finding that he has a meritorious defense.

In this case it so happens, fortunately for defendant, that the judgment is only by default and inquiry, and the burden is still upon the plaintiff to prove his case, as ,such judgment is practically only a judgment for costs. It establishes merely that the plaintiff has a cause of action. Stockton v. Mining Co., 144 N. C., 595; Osborn v. Leach, 133 N. C., 427.

The refusal of the motion to set aside the judgment is

Affirmed.

AlleN, J., did not sit.