Norton v. . McLaurin

Clare, J. This is a motion to set aside a judgment for excusable neglect under The Code, sec. 274. The findings of fact by the judge are final ( Weil v. Woodard, 104 N. C., 94; Albertson v. Terry, 108 N. C., 75; Sykes v. Weatherly, 110 N. C., 231), unless upon an exception that there was no evidence as to some fact found by him, (Marion v. Tilley, 119 N. C., 473) or failure to find material facts, Smith v. Hahn, 80 N. C., 241. TJpon the facts found the Judge finds as á conclusion of law whether there has or has not been excusable neglect, and from such conclusion either side may appeal. *188 Winborne v. Johnson, 95 N. C., 46; Weil v. Woodard, supra. If be finds correctly that the negligence was inexcusable, of course that ends the motion to set aside the judgment. If he finds correctly that the negligence was excusable, then whether he will or will not set the judgment aside is in his irreviewable discretion (Manning v. Railroad, 122 N. C., 824; Stith v. Jones, 119 N. C., 428; Sykes v. Weatherly, supra; Winborne v. Johnson, supra, and cases therein cited), unless in case of gross abuse of discretion (Wyche v. Ross, 119 N. C., 174), but the discretion to set aside is not given by the statute (Code, 274), unless there has been excusable neglect. This is a summary of the cases on this subject. From this it will be seen that no appeal lies except from the finding of law, upon the facts found, that there was or was not excusable negligence; save in the rare cases when it is excepted that there was no evidence to support a given finding of fact or a failure to find material facts, or that after a correct finding that there was excusable negligence, the Judge grossly abused his discretion in setting aside or refusing to set aside a judgment. In this case the Judge found that the summons was duly served on defendants more than ten days before court, and a verified complaint filed within the first three days of the first term, that no order was made extending time to file answer and bond in this case, nor any general order of that kind, but defendants’ attorney had reason to believe a general order had been made at that term giving time to file pleadings; that at the second term of court no attorney having yet appeared or entered his appearance for defendants, no answer or demurrer being filed, nor any bond filed as required by The Code, sec. 237 (this being an action of ejectment), judgment was taken in open court by default final for the land and by default and inquiry as to the damages, which *189 judgment was regularly taken and entered up, the defendants’ counsel being then present in court, and “if paying attention would have heard the motionthat the nest day a general order was made allowing 30 days to file pleadings, but no order was made to extend time for filing defense bonds. It is further i>und as a fact that the defendants’ attorney is solvent. Upon these finding's of fact the Court adjudged there was excusable negligence, and in his discretion set the judgment aside. The latter action would have been irreviewable if the finding of law had been correct that there was excusable neglect. But the negligence was not excusable. (1) In the late case of Vick v. Baker, 122 N. C., 98, it is said: “It does not appear, and it is not averred, that the defendants filed the bond required by sec. 237 of The Code, or were excused-from filing it, and the judgment by default was authorized by The Code, sec. 390 (Jones v. Best, 121 N. C., 154), even if there had been excusable neglect in failing to file answer.” This case is stronger than either of the two cases just cited, for it appears affirmatively that the defense bond was not filed even at the second term, and that no order either general or special, was made to extend time for filing it. This bond, The Code, sec. 237, requires the defendant, in actions to recover real estate, to file before he can answer or demur. The failure to file this bond was the negligence of the defendant himself, and no excuse whatever is shown relieving him from the judgment authorized by The Code, sec. 390, upon his failure to file it. When a man has business in court, it is his duty to attend to it, and at the proper time. Besides (2), the neglect of counsel will not excuse if the defendant himself has been neglectful (Manning v. Railroad, supra), and it is not shown that defendants took any interest in the case, attended court, gave any instructions to their *190 attorney, or asked any from, him. The employment of counsel did not relieve them of all attention to the case. It was still their duty to look after the matter and give the case at least “such attention as a man of ordinary prudence usually gives to his important business.” Roberts v. Allman, 106 N. C., 391; Whitson v. Railroad, 95 N. C., 385; Henry v. Clayton, 85 N. C., 371; Sluder v. Rollins, 76 N. C., 271. The burden was upon the defendants to show this,, and they have not shown that they gave the case any attention whatever, and this is inexcusable negligence. Whitson v. Railroad, supra; Cowles v. Cowles, 121 N. C., 272. It does not appear, except inferentiallv, that they even had counsel employed at the first term. Further, it is not even found by the Court, nor was he asked to find, that the defendants had a meritorious defense should the judgment be set aside. LeDuc v. Slocomb, 124 N. C., 347; Mauney v. Gidney, 88 N. C., 200. Judgment below is reversed.