Jernigan v. . Jernigan

Walker, J., after stating the facts: We are of the opinion that the -order of Judge Connor refusing to disturb the judgment was plainly correct. It is now almost an axiom to say that persons of sound mind, who are served with process to appear in an action and answer a complaint, should be active and diligent in the protection and preservation •of their rights, and the least that can be expected of them is that they will give the case that attention which a man of ordinary prudence usually bestows upon his important business. If he fails in this respect he -can have no relief under the statute in the way of vacating the judg *240 ment, which has been entered because of his default in appearing and pleading. Sluder v. Rollins, 76 N. C., 271; Roberts v. Allman, 106 N. C., 394; School v. Peirce, 163 N. C., 427; McLeod v. Gooch, 162 N. C., 122; White v. Rees, 150 N. C., 678; Pierce v. Eller, 167 N. C., 672. The law does not favor those who sleep upon their rights, but those who are vigilant, and give them proper attention. This is a very ancient maxim, and it has frequently been applied by us to cases of this kind. School v. Peirce, supra. Applying this principle to our case, we find the facts to be, as stated by the learned judge, that the original defendant against whom the judgment was rendered, was at the time of perfectly sound mind; he retained attorneys, who lived in his own county, not far from his home; he had other cases to which he gave the requisite attention, and he wa3 callable of guarding his interest in this case, and of consulting with his attorneys in regard to it, and filing his answer. The mere fact that he was sick is not, of itself, sufficient to excuse him, for the judge finds that, notwithstanding his illness, he was able to have his answer prepared and filed. It was said in Pierce v. Ella, supra, that “the defendants (in that case), it is true, were old and feeble, but there is no finding that they are not of sound mind,” and their neglect to answer was not excused. Here it is affirmatively found that the defendant was of sound mind, though enfeebled by disease, and not able to leave his home, and that he had actually attended to his ordinary affairs efficiently and in the usual way, except as above indicated. The court found, as will appear, by reference to the statement of facts, that he had directed the management of his business, and even the other litigation then pending, and especially that he had filed answers in two civil actions during the period of his sickness and confinement at his home. It appears that, notwithstanding the ability of Blackman Jernigan to file his answer, he never wrote but one letter to his attorneys about the business, and that was when he retained them to appear for him, and he took no further steps himself to see that an answer was filed. We have held, as before indicated, that a party has no right to abandon all active prosecution of his ease simply because he has secured counsel to represent him in it. McLeod v. Gooch, supra. It further appears that he employed attorneys not residing in Harnett County, where the case was pending, and not practicing in its courts. The learned judge could consider this fact upon the question of negligence. Manning v. R. R., 122 N. C., 824; Osborn v. Leach, 133 N. C., 428; Williamson v. Cocke, 124 N. C., 585; Hardware Co. v. Buhmann, 159 N. C., 511; McLeod v. Gooch, supra. As said by this Court in Kerchner v. Baker, 82 N. C., 169, and affirmed in White v. Rees, 150 N. C., 678: “The course of the defendant was not the care of an ordinary prudent man in reference to his own personal interest, nor was *241 it consistent witb tbe proper deference and attention due from tbe defendant and every suitor to tbe known and orderly course and practice of tbe courts in tbe administration of tbe law. ‘Tbe defendants bave lost tbeir rights, if they bad any to protect, by tbeir own inattention and inexcusable neglect.’ ” We added in White v. Rees, supra: “Tbe defendants bave lost tbeir rights, if they bad any to protect, by tbeir own inattention and inexcusable neglect.” There is no finding that Black-man Jernigan was prevented by illness, or other reasonable cause, from communicating witb bis counsel, and thereby making known to them bis defense, but tbe contrary is stated as tbe fact, and tbe cases where that appeared, such as Mebane v. Mebane, 80 N. C., 34, do not apply. Tbe facts present a case of inexcusable neglect within tbe meaning of tbe statute, and tbe decision of tbe court was correct. Affirmed,