Mauney v. . Gidney

Ruffin, J. We infer, though it is barely a matter of inference with us, that some irregularity was committed in the course of the proceedings in the county court when the first administrator applied for a.license to sell the lands of his intestate, which it is now supposed vitiated those proceedings and may affect injuriously the order that was then made. Nothing of the sort, however, is alleged to have occurred in the action which the present plaintiff brought in 1878, for the purpose of enforcing the execution of his deed. So far as is disclosed in the record or in the findings of the court below, that action was regularly conducted, all the parties being duly served with process and before the court, and the judgment itself rendered strictly according to the course of the court. To rid themselves, therefore, of this judgmeut, the defendants must rely, as they seem to do, solely upon the ground of “ excusable neglect” as provided for in the statute. C. C. P., § 133. Confining our attention to this view of the case, we are unable to see anything in the facts found, calling for, or even justifying an exercise of a legal discretion on the part of the court to deprive the plaintiff of the benefit of a judgment thus obtained, and put the cause again at issue. In the first place, and contrary to all the authorities, the defendants omit to s'et out in their application any defence whatsoever which they theu had, or which it is conceived they could now make to the action; and for aught the court can tell, looking to their allegations, it may be called upon after setting aside the judgment to render just such another between the same parties. To avoid engaging in so vain a thing, the courts have uniformly required in all such applications that the parties should, at least, set forth such a case as prima. facie amounted to a valid defence. English v. English, 87 N. C., 497; Jarman v. Sau *204 nders, 64 N. C., 367. Nor is this failure on their part at all cured by the judge’s finding, as a fact, that the defendant administrator and the guardian ad litem, have since satisfied themselves that there really existed a defeuce, which, had it been relied upon, would have defeated the action. The particulars of that defeuce are not so stated, as that the court can take hold of it and determine its merit, and it is for the court to do this and not. the parties. In the next place, there is always a presumption — and it is jumper that there should be — in favor of the validity and integrity of every judgment of a court of competent jurisdiction, the burden of overcoming which, even in cases coming within the statute, rests upon a party who seeks to have the judgment vacated. He must show that his default in making his defence proceeded from what the law deems excusable neglect, and until he does so the judgment must stand. In this regard, too, no distinction can be made between infant and adult defendants. If properly before the court and represented according to the requirements of the law and the practice of the court, the former must be as much bound as the latter by the judgment, and as much affected by the presumption in its favor. So far from answering to this requirement of the law, the default of these defendants, or those who¡se duty it was to represent them, was the very reverse of excusable, in that, they omitted to do the very thing which they were appointed to do, that is, to inform themselves of the real merits of the case, and to ascertain and put forth the defences proper to be made. The assurance which they received from the plaintiff’s attorney, that he had an incontestible cause of action, ought not to have misled them, and could not have done so, if they had been even ordinarily prudent and diligent. What discreet man, when sued, would think of going to his adversary’s counsel for information as to the defences and the proper mode of asserting them? For negligence, such as this, the statute makes no provision; neither can the law palliate it *205 without being untrue to itself, and to all its teachings of diligence. Unquestionably, if the counsel had made use of any artifice for the purpose of misleading them, and preventing their ascertaining the true facts of the case, the court would have been prompt in relieving them from its consequences. But not so, when all he did was to give his honest opinion when asked, and when the only wrong done consists in their having followed his advice. As to the adult defendant, there is absolutely no ground for disturbing the judgment as to her. She took the advice of counsel, and, having acted on it, must abide the result. The court is therefore of the opinion that it was error in the court below to set aside the judgment rendered in the cause, and the order to that effect is reversed. Error. Reversed.