Pierce v. . Eller

AlieN, J. Tbe order of Judge Cline, made at August Term, 1913, refusing to set aside tbe judgment, is not an estoppel upon tbe defendants, because at tbe succeeding September term tbe same judge set aside tbe order of tbe August term without objection by either party, and when this was done it left pending tbe motion of the defendants to set aside tbe judgment upon tbe ground of excusable neglect, and this was made within twelve months, as required by tbe statute, Revisal, sec. 513. This leaves for consideration tbe order of Judge Webb, and while bis findings of fact are conclusive upon us, bis determination of tbe legal question, that there is excusable neglect, is reviewable on appeal. Stockton v. Mining Co., 144 N. C., 596. It has been held repeatedly by this Court that persons of sound mind who are served with process must be active and diligent, and that if they fail to give litigation tbe attention which a man of ordinary prudence usually gives to bis important business, they can have no relief under tbe statute. Sluder v. Rollins, 76 N. C., 271; Roberts v. Allman, 106 N. C., 394; School v. Pierce, 163 N. C., 427. In tbe first of these cases tbe Court says: “Tbe least that can be expected of a person having'a suit in court is that be shall give it that amount of attention which a man of ordinary prudence usually gives to bis important business,” and this was quoted in tbe second case. And in tbe last case: “Tbe law does not allow a party to sleep on bis rights. He must keep awake and be alert, exercising tbe care and watchfulness of an ordinarily prudent man in protecting bis rights and saving bis interests. We have held that tbe standard of care by which be must be judged is that which a man ordinarily prudent bestows upon bis important business. Roberts v. Alman, 106 N. C., 391.” Applying these principles, we are of opinion there is no excusable neglect. Tbe defendants are old and feeble, it is true, but there is no finding that they are not of sound mind, and they are defending this motion without tbe intervention of a guardian. Tbe action is to recover land and damages for trespass on land, and although there is no denial that tbe summons was regularly served, they have taken no steps for five years to prepare a defense. It was their duty to file a bond, and they bad no right to answer and defend until they bad done so or bad shown their inability to give bond. Vick v. Baker, 122 N. C., 99; Norton v. McLaurin, 125 N. C., 189. *676 It does not appear that they employed counsel, that they made any effort to file a bond, that they made application for time to answer, that they ever made any inquiry as to the course of the litigation, and'the only excuse for their neglect is that they were so inattentive they forgot the suit. If under these circumstances a judgment can be set aside, no one will be secure in his rights, if the judgment is against one old and feeble. Reversed.