Hiatt v. . Waggoner

Ashe, J. We concur with His Honor that the defendant has failed to make out á case of mistake, surprise, inadvertence, or excusable negligence under section 133 of the code. In the case of Burke v. Stokely, 65 N. C., 569, which was a *175 much stronger case for the defendant than this, the defendants in that case wrote to an attorney residing in the town where the court was held, and employed him to plead to the suit, stating that they had a meritorious defence. There was no evidence whether he received the letter, but he entered no appearance for defendants; and it was held that the negligence was not excusable. In our case no attorney was employed or written to. The defendant requested the sheriff to write to the plaintiff, but whether he did so does not appear. But even if he did, that would not excuse him. He was so indifferent to the proceeding taken against him that he never even inquired of the sheriff if he had written, and gave himself no concern about the matter, until he found the execution in the hands of the sheriff. There was very gross negligence on the part of the defendant. There are other views of this case that might have been considered by the court but for the agreement of counsel that the case “should be treated as a motion to vacate the order under section 133 of the code.” Under that view of the case there was no error. Let this be certified to the superior court of Davidson county. No error. Affirmed.