Lerch Bros. v. McKinne Bros., 187 N.C. 419 (1924)

March 19, 1924 · Supreme Court of North Carolina

187 N.C. 419

LERCH BROTHERS v. McKINNE BROTHERS.

(Filed 19 March, 1924.)

Pleadings — Statutes — Judgment — Default of Answer — Excusable Neglect — Ignorance of tbe Law — Motions.

. Where a party is made a defendant by service of summons, together with the complaint filed in the action, he is irrebuttably fixed with notice that, under the provisions of C. S., 600, he is required to file his answer in twenty days from substitute service; and on his motion to set aside judgment rendered in default of an answer, his ignorance of the law will not excuse him, though misled by the erroneous wording of the summons in this respect.

Appeal by plaintiff from Calvert, J. A former appeal is reported in 186 N. C., 244.

It appears therein that tbe clerk denied tbe plaintiff’s motion for judgment by default, and this Court affirmed Judge Cranmer’s order reversing tbe clerk. After tbe opinion was certified to tbe Superior Court of Franklin County execution was issued, and tbe defendants thereupon moved to set aside tbe judgment for excusable neglect and asked leave to file an answer. Tbe motion was beard at chambers in Raleigh on 29 December, 1923, and Judge Calvert found as facts: (1) that tbe summons, which was issued on 28 December, 1922, commanded tbe defendants to appear before tbe clerk of tbe Superior Court on 8 January, 1923, and within twenty days thereafter to answer tbe complaint, which would be deposited in tbe clerk’s office on or before tbe return day of tbe summons; (2) that tbe complaint was duly served with tbe summons on 28 December, 1922; (3) that tbe defendants bad their attorneys to prepare an answer and tender it for filing after twenty days from tbe service of tbe summons and complaint but within twenty days from 8 January, 1923; (4) that tbe language of tbe summons was calculated to divert and did divert tbe mind of tbe defendants from tbe proper time for filing tbe answer, and that they relied upon tbe mandate in tbe summons.

As conclusions of law bis Honor held that the defense was meritorious and that the language of the summons was sufficient ground for finding, as he did find, that while there was a mistake of law on the part of the defendants in failing to file their answer within the time prescribed, yet that was an inadvertence which entitled them to relief. Thereupon the judgment was set aside and the defendants were given leave to file an answer. The plaintiff excepted and appealed.

T. T. Hicks & Son for plaintiff.

W. H. Yarborough and S. A. Newell for defendants.

Adams, J.

The judge is authorized, upon such terms as may be just, to relieve a party at any time within one year after notice from a judgment taken against him through his mistake, inadvertence, surprise or excusable neglect (C. S., 600), but the several grounds upon which the power may .be exercised relate to facts and do not extend to matters of law. Ignorantia facti excusat, ignorantia juris non éxcusat. Ignorance of a material fact may excuse a party, but ignorance of the law does not excuse him from the legal consequences of his conduct. In Skinner v. Terry, 107 N. C., 103, the Court, holding that the words “mistake, inadvertence, surprise, and excusable neglect” signify some fact of which the complaining party should have had knowledge and do not include mistakes of law, used this language: “It [the statute] does not imply that the Court may grant a new trial or set aside a judgment for errors of law or upon the ground that the party was ignorant of the law or of his rights and of the methods and means whereby he might assert or enforce them.” During the present term the question has again been considered and decided (Battle v. Mercer, post, 437), and while it does not call for further discussion, reference may be made to the following additional cases: Howell v. Barnes, 64 N. C., 625; Churchill v. Ins. Co., 88 N. C., 205; Phifer v. Ins. Co., 123 N. C., 405; Mann v. Hall, 163 N. C., 51, 54.

If the defendants unfortunately relied upon the language of the summons, they were nevertheless affected with knowledge of the statutory provision prohibiting the clerk from extending the period for answering beyond twenty days after service of the complaint, and their “inadvertence” was essentially a mistake of law. In such case the statute affords no relief. C. S., 600; Public Laws, Extra Session 1921, ch. 92.

As it is unnecessary to discuss the merits of the defense we forbear referring to it except to call attention to the defendants’ 'repeated promises to make settlement of the account.

For the reasons assigned, the order of his Honor vacating and setting aside the ’judgment must be

Reversed.