Churchill v. Brooklyn Life Insurance

Ashe, J., after stating the case. This the court had the power to do. Dick v. McLaurin, 63 N. C., 185; Dick v. Dickson, Ib., 488. But then the question is raised whether the court erred in refusing to set aside the judgment altogether, upon the ground of excusable negligence. A party seeking to vacate a judgment under section 133 of che Code, is always at default, and thé onus is upon him to show facts which would make the refusal to vacate appear to be an abuse of discretion. Kerchner v. Baker, 82 N. C., 169. Here, *208 the summons was served upon the defendant’s agent on the 28th of June, 1882, and at the return term, more than three months after the service, the defendant allowed judgment to be taken against it, relying upon what it supposed was the law in regard to the action, instead of directing the agent here to employ an attorney and get advice as to what was necessary to be done in the case. This is what every man, with ordinary diligence in his business matters, would have done under the circumstances. The defendant and its agent knew that the summons was returnable to the fall term of the court, more than three months after legal notice of the action, and no counsel was consulted in the interim, and neither of them attended the court, or paid any attention to the case. The neglect was inexcusable. It was the neglect of the party, and is distinguishable from those cases where the neglect is imputable to the attorney—as in English v. English, 87 N. C., 497, and eases there cited. The case falls within the principle decided in Henry v. Clayton, 85 N. C., 371; Bradford v. Coit, 77 N. C., 72; Sluder v. Rollins, 76 N. C., 271; Waddell v. Wood, 64 N. C., 624. No error. Affirmed.