We concur-with Iiis Honor in his conclusion *374that the defendant is guilty of inexcusable neglect. The facts in cases like this are so various,, that it is difficult to. lay down any general rule for guidance, but each case must, depend upon its particular circumstances..
But though there may be some apparent conflict in the-decisions,, we think the distinction is well marked between those eases, where the negligence is to be imputed to the-attorney and the party is not in default, and where the party himself is guilty of the negligence. So it was held in the-case of Griel v. Vernon, 65 N. C., 76, that a judgment taken by default for want of a plea is a surprise upon a party under the-Code of Civil Procedure,^ 133-, where be has employed an attorney to enter his pleas and such attorney has-neglected to do so, and' the neglect of the client to examine the records to see whether his pleas have been entered is an excusable neglect. -This case is distinguished from- that of Burke v. Stokely, 65 N. C., 569; There, an attorney vras written to by the defendant,.but it did not appear that he had; ever received the letter. Neglect therefore eould not be imputed-to the attorney,.but it was the duty of the defendant, either in person or otherwise, to. ascertain whether the attorney had received his letter,and if he had not, to take further steps-for bis-defence. But he did nothing of the kind. Relying upon the-ehances of the mail to carry bis letter, he made no* inquiry about his case until after judgment, and it .was held not to. he excusable neglect..
It is also distinguishable from the case- of McLean v. McLean, 84 N. C., 366, where a summons was regularly served upon the defendant,, and the counsel- employed by him failed to enter his pleas, and the defendant made no-inquiry as to the disposition of his’ease until neaidy five-years after rendition of the judgmenti-t was held that his laches were inexcusable.
Our case is rather governed by the decisions in Bradford v. Coit, 77 N. C., 72, and Sludex v. Rollins 76 N C., 271. Im *375the first, where a ease was set for trial by consent oil a certain day, and it appeared that a party had not determined to attend court until after the term began, and' not then unless advised by counsel that it was absolutely necessary, and after correspondence with his counsel concerning the trial of the case, failed to reach court before the trial, and judgment was taken against him, it was held not to be excusable but gross neglect. In the latter case, which more resembles ours, the defendants were in the town in which a court was in session, at which a judgment was rendered against them, and they did not communicate the nature of their defence to their counsel or file an answer; it was held they were guilty of inexcusable neglect and not entitled to have the judgment vacated. To the same effect is Waddell v. Wood, 64 N. C., 624.
Here, the defendant resided in the town of Asheville where the court was being held, and his attorney was in attendance upon the court! If he had exercised the ordinary vigilance which is expected of every suitor in. a court of justice, he could easily have ascertained the day when his case was set for trial. He could have done so by referring to the calendar, or by applying to his attorney, or to the clerk of the court, but instead of so doing he left the town and remained absent during the day. After calling his case for trial in the morning of the day on which it was set for trial, the court indulged his counsel until the afternoon that he might have an opportunity of sending for him. Whether he sent or not does not appear, but it was no part of the professional duty of his counsel to send into the country for him. The neglect was his, not that of his counsel. “ He failed to give that amount of attention to his case which a man of ordinary prudence usually gives to his important business.” Sluder v. Rollins, supra. This neglect is therefore inexcusable.
There is no'error. The judgment must be affirmed.
No error. Affirmed.