Clegg v. New York White Soap Stone Co.

Reade, J. The facts found by his Honor are, that Fall Term, 1870, was the return term, and that the defendant appeared by counsel and moved for time to answer: and time was granted him until 4th March, 1871. That no answer was filed within the time, and that at Spring Term, May 1871, the defendant appeared by counsel and requested a copy of the complaint, and immediately upon its being furnished, he offered to file the answer. The Court refused to allow the answer to be filed, and gave judgment for the plaintiff. At Fall Term, 1871, there was a motion to vacate the judgment, for the reason that the neglect of the defendant to fife his answer -was excusable under C. C. P. 133. The excuse assigned was, that the counsel, by mistake, had misinformed his client as to the time when the Court would be held. Suppose the facts were sufficient to excuse the defendant for not filing his answer at the return term, 1870, (if that was the term as to which he was misinformed), he did not suffer by it, because he was allowed time until 4th March, 1871, If Spring Term, 1871, was the term as to which he was misinformed, (it is left uncertain which was the term), still his mistake did him no harm, because it was not at that term, but on the 4th of March previous that he was to file his answer. So that, we agree with his Honor that the neglect to file his answer on or before 4th March,. 1871, has nothing to excuse it. It is however insisted, that it was the duty of the plaintiff) not only to file his complaint, as he did do, at or: before thq. return term, but it was also his duty to furnish the defendant with a copy. This is-true ; but still, we agree with his Honor that the defendant waived his advantage by not taking the objection at the appearance term,, and by appearing and taking tiin,0 to file his answer, - *304 But there is another view which is fatal to the defendant’s motion. At Spring Term, 1871, when the Court refused to allow the answer to be filed, we are to assume that the question of excusable neglect” was passed on. If the defendant was dissatisfied with the ruling, he had the right to appeal, and it was his duty to do so; for the motion to vacate, C. C. P. 133, is not a substitute for an appeal, but is a relief against accident. And as was said by us in Waddell v. Wood, administrator, 64, N. C. 624, it is not to be tolerated in the most liberal practice that a party is to lie by and let judgment pass, when he might appeal, and at a subsequent term move to vacate. I take this occasion to remove a doubt which I expressed in a dictum in the ease of Waddell v. Wood, adm. supra, as to the power of this Court to review the ruling of a judge below upon a motion to vacate, whether it was not exclusively within the discretion of the Judge. We have since held that we can review him; and I regard it as settled. No error. Per Curiam. Judgment affirmed.