Koch v. Porter.

Eurohes, C. J. Tbis is a motion to set aside a judgment for excusable neglect, under section 274 of Tbe Code. Tbere^ fore tbe merits of tbe controversy aré not before us. We do not think we can give a better statement of tbe case on appeal than by incorporating tbe findings and judgment of tbe Court below in our opinion: “Motion by defendants to> set aside judgment rendered in this cause October Term, 1899. “Motion beard by G. H. Brown, Jr., Judge, at August Term, 1900, Columbus Superior Court, upon, affidavits and exhibits filed by plaintiffs and defendants. “It was agreed that tbe Judge should take tbe papers and render his findings and judgment at any time out of term. “Messrs. McLean and Bryan, for defendants; Messrs. Bountree, Schulken and Lewis, for plaintiffs. “After carefully considering and weighing all tbe matters and facts recited in tbe several affidavits and exhibits, and having considered carefully arguments of counsel, I find tbe following facts: “Tbis action was commenced on October 1, 1898, against Luther C. Porter and wife, George E. Porter and wife, and others, named in original summons; that said summons was served as to Luther C. Porter and tbe other non-residents of this State, as appears in tbe papers in tbe cause, on March 22, 1899, and also on said defendants by Sheriff of Hennepin County, Minnesota, in October, 1898. That shortly thereaf *134 ter Luther C. Porter died in said county and State of Minnesota, and another summons was issued March 16, 1899, against ins executors and others therein named, legatees of Luther C. Porter. The complaint herein was duly filed May 13, 1899. “The plaintiff was then and is now a non-resident of this State. The defendants, the executors of Luther C. Porter, and George E. Porter and wife, and others, legatees of Luther C. Porter, were then and are now residents and citizens of Minneapolis, in the State of Minnesota. These said defendants at once employed Messrs. Wishart & Erazier, reputable attorneys of the Superior Court, and residents of Whiteville, Columbus County, to appear for them and file their answer and defend the said cause. That said defendants paid the said attorneys and they accepted the employment and entered into correspondence with defendants and their representative and agent. I find that neither of said firm of attorneys are worth over the homestead exemption allowed by law, and that execution can not be collected out of them. That at August Term, 1899, said attorneys entered a general appearance for their clients, that being the appearance term. That sixty days was granted said attorneys upon their motion on August 16, 1899, within which to file answer for their clients, the defendants. The August Term, 1899, commenced on August 14-. Said answer was not filed within said sixty days- — nor was it filed on October 23, 1899, the commencement of October Term of said Oourt. That about the first of October, 1899, and .before the sixty days had expired, Wade Wishart, Esq., of said firm of Wishart & Erazier, met George Rountree, Esq., counsel for plaintiff, who brought this action, in Wilmington, N. C.; that Mr. Rountree told Wishart that he would take no advantage of any failure to file the answer within the sixty days, and that he had no- objection to a, continuance of the cause at October *135 Term, 1899; but that be desired Wisbart to burry and file tbe answer. At tbis time about forty-five of tbe sixty days had expired. A few days after tbis conversation, in- consequence of a letter from tbe plaintiff, Mr. Rountree wrote Wisbart that be should insist on a trial at October Term, and to burry up and file bis answer at once, as bis client, tbe plaintiff, insisted on trial. I further find as a fact from tbe testimony of Wisbart, that within tbe said sixty days allowed defendants to file answers and in ample time for said attorney to have prepared and filed tbe answer, all tbe facts, circumstances and documents, upon which defendants relied for a defense, were placed in bis possession by defendants, and that such data was in Wishart’s possession in ample time to have filed said answer within time allowed, and that bis clients, being residents of far-off States, could not well know, except through Wisbart, whether tbe answer was filed or not. “Wishart’s testimony in tbis respect seems to be corroborated by George E. Porter and tbe exhibits filed. “Tt was admitted in open Court that- Wisbart was a reputable attorney of tbis Court. “In justice to Wisbart, I find that be failed to file the answer laboring under a bona fide but mistaken belief that Mr. Rountree bad consented that an order for enlargement of time to plead might be entered at tbe then approaching October Term. “I find that tbe defendants are not responsible for tbe neglect of Wisbart and his firm to prepare and file tbe answer, as they should have done. “The defendants, David Nealy and wife Dorcas, and J. G. Jackson, appear to be only nominal defendants, and have no definite interest set out in the complaint. (See sections 5 and 6.) All other defendants are the executors and legatees under the will of Luther C. Porter, deceased. *136 “At October Term, 1899, the defendants’ counsel, Wishart, moved for further time to file answer. Plaintiffs moved for judgment. The Court rendered the judgment set out in record for want of answer. “I find that the defendants have a bona fide and prima facie a valid defense, as set out in the affidavit of George E. Porter, dated August 16, 1900, filed, and that the demand of plaintiff consists largely of open account against estate of L. 0. Porter, which would require some proof to substantiate. “The defendants moved to set aside the judgment: “1. Because irregular and not warranted by law. “2. Because of excusable neglect. “I am of the opinion that as to the money demand, a judgment by default and inquiry only should have been rendered; but it appears that defendants’ counsel was present and objected to the judgment and appealed to the Supreme Court, and failed to prosecute the appeal. Therefore, this contention can not now be sustained. “(The defendants duly except.) “I am of opinion, upon the facts, that defendants .are entitled to relief because of excusable neglect. Gwaltney v. Savage, 101 N. C., 103. “(The plaintiffs duly except.) “It is therefore ordered and adjudged that the judgment rendered at October Term, 1899, be sqt aside, and the defendants are granted sixty days from date of this order within which to file an answer. “(The plaintiffs duly except.)” The facts found, it seems to us, entitled the defendant, in the discretion of the Court, to the relief granted. Gwaltney v. Savage, 101 N. C., 103. The facts found by the Court below are not reviewable by us, unless there is no evidence to support their finding. Sikes v. Weatherly, 110 N. C., 131; Nicholson v. Cox, 83 N. C., 48; Stith v. Jones, 119 N. C., *137 428; or, where it appears that the discretion of the Judge has been abnsed. Cowles v. Cowles, 121 N. C., 272. And we can not say there was no evidence to support the findings of the Court below, nor an abuse of power. We think this ease is distinguishable from Manning v. Railroad, 122 N. C., 824. In that case the defendant employed Mr. Watts, a non-resident attorney, who had no right to practice in the Courts of this State, except by the courtesy of the Court and bar. And while it is true that Luther Porter, who lived in Minnesota, had been consulted by some of the defendants, he was one of the defendants in the action and did not expect to appear as counsel in the case; nor did his co-defendants expect him to do so, but at once proceeded to employ and pay attorneys living in -this State who were regular attendants at Columbus Court. We think it distinguishable from Norton v. McLaurin, 125 N. C., 185. That was an action of ejectment where it was necessary to give bond before answer could be filed. This was purely the duty of the defendant, and he neglected to give the bond. Besides, in that case the Court failed to find that the defendant had a meritorious defense. It is also distinguishable from Vick v. Baker, 122 N. C., 98, where the negligence seems to have been entirely'the negligence of the defendant. It also seems to be distinguishable from. Cobb v. O’Hagan, 81 N. C., 293, where the defendant lived within thirty-seven miles of the -Court, but did not attend the same or give hi3 ease any attention -whatever. The judgment, it seems to us, is both irregular and erroneous, at least so far as it applies to the open accounts stated in the complaint. But the Judge refused to set aside the judgment on that account, and as the defendants did not appeal, that question is not before us. But from the facts found, which are final, the Judge was *138 authorized in bis discretion to set aside the judgment, which he did, and his ruling must stand. . Affirmed.