The affidavits show that there is no ground on which the Court could grant a new trial. The Defendant Barfield, neglected the case from the beginning, on very insufficient reasons, whereby a default was taken against him ; and afterwards on the trial, in - curred the risk of a counsel’s attendance who did not practise in the Court, while he was told of others that would be in attendance. To award a new trial for the reasons here offered, were to encourage inattention, and promote litigation.
Cogdell v. Barfield, 9 N.C. 332, 2 Hawks 332 (1823)
June 1823
·
Supreme Court of North Carolina
9 N.C. 332, 2 Hawks 332
Cogdell v. Barfield.
From Sampson.
When a Defendant, from the beginning-, neglects his case on very in,, sufficient grounds, whereby a default is rendered against himand afterwards employs counsel to attend to the business, who does not practice in the Court,'he, is not entitled to the indulgence of the Court, and shall not claim any because of the absence of his counsel.
The Plaintiff had issued a writ against the Defendant for having committed an assault and battery on him, which was returned to September term, 1822, of Sampson Superior Court, at which term a judgment by default was entered, and at the succeeding term, in April, 1823, a writ of enquiry was executed, and a Jury assessed the Plaintiff’s damages to five hundred dollars and costs. On Friday of that term, the Defendant moved on affidavits filed, for a rule to shew cause why a new trial should not be granted. The rule was granted, and on argument, afterwards discharged, and judgment rendered, from which Defendant appealed. The substance of the affidavits, which made part of the case sent up, follows. The Defendant made oath; that before the writ was served on him, he wrote to Mr. Henry, an attorney of Fayetteville, to employ him in the suit which he then anticipated would he commenced by this Plaintiff; that receiving no answer to this letter, he was therefore induced to believe Mr. H. would appear for him ; that he continued to entertain this belief until he was undeceived by Mr. H. in March, 1823, at Duplin Superior Court; the Defendant then procured other counsel, who, after conference with Plaintiff’s attornies, informed the Defendant, that by an arrangement made between the counsel, the attendance of the Defendant at Sampson Court would not be necessary before Friday of the term ; and that Defendant believed if he might be heard, that he> *333- ouM prove that the fight was as much owing to tile Plaintiff as the Defendant. "
From the affidavit of Mr. Farrier, the Defendant's at-iorncy, it appeared that in March, 1823, the Defendant employed him at Duplin Court to attend to this cause; ihat die Defendant preferred the services of Mr. F. be cans'- he had defended him on an indictment for the same cause in Duplin County Court $ that the Defendant then informed Mr. F. that the next term of Sampson Court was the return term of the writ, and his attendance would only he necessary to remove the cause to another conn* ¿y: but in the following week at Wayne Court, the Defendant informed Mr. F. that the next term of Sampson Court wad the trial term of tíre cause. Mr. F. then had an interview with Mr. Meares, one of the attornies for the Plaintiff, and informed him that as Sampson Superior Court was held at the same timo with Duplin County Court, it would he impossible for Mr. F. to attend Sampson Court earlier than Friday of the term, and asked oi Mr. M. a postponement of the suit until Friday. Mr. M. stated, that it was not in his power to postpone it, but he would state the facts to the Court, and if it approved of it, he would make no objections, and on the whole thought it probable, as Thursday would lie occupied with State prosecutions, the cause would not be reached before Friday.
Mr. Henry’s affidavit stated that he had received a letter from the Defendant, to which he had not attended from particular reasons; that the Defendant had not sent him any retaining fee, and he therefore did not consider himself employed; and that when he next saw Defendant, lie informed him he was employed by the Plaintiff.
Mr. Meares stated in his affidavit, that in March, 1823, the Defendant wished to employ him in this suit, hut Mr. M. Staving been retained by the Plaintiff, could not appear for the Defendant, but informed him of several gentlemen of the bar unemployed in the case, who *334attended Sampson Court; that in the following week, Mr. Farrier and Mr. Meares had a conversation relative to the suit,, and Mr. F. requested the cause might be ja-(j ovei. until Thursday of the term, to which Mr. M. replied, in substance, that he should have no objection, if the Court would permit it, and it would not operate as a continuance, but that he believed the situation of the docket was such in Sampson, that the delay could not take place without its operating as a continuance, and that he was not authorised to consent to a continuance.