Pailin v. Richmond Cedar Works

Stacy, C. J. Upon the facts found by the judge, supported as they are by competent evidence, it must be conceded, we think, that the defendant is not entitled to have the judgment set aside on the ground of “mistake, inadvertence, surprise, or excusable neglect.” Seawell v. Lumber Co., 172 N. C., 320. Under the decisions construing the statute applicable, C. S.,. 600, if a party who is sued employ nonresident counsel, not to appear in the case himself, but whose duty is merely to select other counsel to attend to the matter, and he fail to make such selection, the first-named counsel is to be considered as an agent pro hac vice of the defendant, whose negligence will be imputed to the party himself, and hence not excusable. Manning v. R. R., 122 N. C., 824; Bank v. Palmer, 153 N. C., 503; Edwards v. Butler, 186 N. C., 201; Schiele v. Ins. Co., 171 N. C., 426. This position is not seriously combatted by the defendant, but it was argued on the hearing that the judgment should be set aside for irregularity and for want of sufficient allegation of negligence. These contentions, it would seem, are not presented on the present record, but it may be doubted as to whether they could avail the defendant, even if properly before us. Finger v. Smith, 191 N. C., 818; Livestock Co. v. Atkinson, 189 N. C., 250; Ellis v. Ellis, 190 N. C., 418. The motion was correctly denied. Affirmed.