Allen v. . McPherson

Clark, C. J". Tbis was a motion to set aside tbe judgment on tbe ground of excusable neglect. Tbe summons was issued 25 January, 1913. Time to file complaint was extended and it was filed at April Term, 1913. Tbe defendant was allowed till next term to file answer, but be did not tben file answer, and at tbe fifth term after filing tbe complaint tbe plaintiff moved for and obtained judgment by default and inquiry. -Tbe defendant bad employed a lawyer living at Lillington, in Harnett County (where tbe defendant himself lived), and did not employ any resident or local couiisel in Wake, where tbe cause was pending, to represent him. Tbe motion to set aside tbe judgment was not made till November Term, 1913,-of Wake. *437 On a motion to set aside a judgment for excusable neglect, tbe findings of fact by tbe judge are conclusive and irreviewable, and we cannot look into tbe affidavits to contradict bis findings, except on allegation that there is no evidence to sustain tbe findings, wbicb is not tbe case bere. On tbe findings of fact, whether as a matter of law there was or was not excusable neglect is reviewable on appeal. If tbe judge finds correctly that tbe neglect was not excusable, that concludes tbe matter. If, however, be finds that tbe neglect was excusable, whether in such case be shall set aside tbe judgment is a matter in his discretion, and not reviewable, except in a case of gross abuse. This section (Rev., 513) was analyzed and fully discussed in Norton v. McLaurin, 125 N. C., 185. See, also, citations to that case in tbe Anno. Ed. In Norton v. McLaurin, supra, tbe Court held: (1) Tbe negligence of counsel will not excuse, if tbe client himself has been neglectful. (2) Before granting an application to set aside a judgment, tbe Court must find, as a material fact, that tbe defendant has a meritorious defense. In this case tbe facts show that tbe client himself was neglectful. A client cannot place bis case in tbe bands of bis counsel and pay no further attention to it. “It is not enough that parties to a suit should engage counsel and leave it entirely in bis charge. They should, in addition to this, give it that amount of attention wbicb a man of ordinary prudence usually gives to bis most important business.” Roberts v. Allman, 106 N. C., 391; Pepper v. Clegg, 132 N. C., 315. See, also, numerous cases cited in that opinion and tbe citations thereto in tbe Anno. Ed. In Pepper v. Clegg, supra, we said: “When a man has a case in court, tbe best thing be can do is to attend to it.” This has been quoted with approval, McClintock v. Ins. Co., 149 N. C., 36, and in Lunsford v. Alexander, 162 N. C., 530. In S. v. Downs, 116 N. C. (quoted and approved S. v. McLean, 121 N. C., 601; Barber v. Justice, 138 N. C., 21), we said that tbe ignorance of law by counsel would not be an excuse for a client, for if it were, “tbe more ignorant counsel could manage to be, tbe more be might be in demand.” For tbe same reason,-if tbe negligence of counsel were an excuse, when tbe client himself pays no attention to tbe case, then “tbe more negligent counsel could manage to be, tbe more valuable be would become.” In Manning v. R. R., 122 N. C., 828, we discussed tbe duty of clients to look after their lawsuits and not surrender tbe matter entirely to tbe bands of their counsel, and deprecated tbe system of employing counsel nonresident in tbe county where tbe action is pending, or not regularly attending that court, and^ said: “Our laws do not recognize this leisurely, kid-glove and dilettante manner of attending to legal proceedings at long range.” To same effect, Osborn v. Leach, 133 N. C., 430; Bank v. Palmer, 153 N. C., 503. *438 It is also essential for the judge to find that the defendant has a meritorious defense which could be set up if the judgment is set aside. Stockton v. Mining Co., 144 N. C., 599, and cases there cited; Minton v. Hughes, 158 N. C., 587. The additional finding that “The defendant denies the obligation set out in the complaint,” is not the finding that he has a meritorious defense. In this case it so happens, fortunately for defendant, that the judgment is only by default and inquiry, and the burden is still upon the plaintiff to prove his case, as ,such judgment is practically only a judgment for costs. It establishes merely that the plaintiff has a cause of action. Stockton v. Mining Co., 144 N. C., 595; Osborn v. Leach, 133 N. C., 427. The refusal of the motion to set aside the judgment is Affirmed. AlleN, J., did not sit.