Stallings v. . Spruill

BeowN, J. This is a processioning proceeding to determine and establish the true division line between the lands of plaintiff and defendant. It was returnable before the clerk 12 December, 1916. The complaint was filed, duly verified, on 4 December, 1916. On return day defendant failed to answer, and the cause was continued from time to time to permit defendant to file answer, and until 29 January, 1917, when the clerk, upon motion of plaintiff, rendered judgment for failure of defendant to file answer. It appears from the findings of fact that the summons was given to M. C. Braswell, general agent for defendant, who is a resident of New Jersey. Braswell sent summons to defendant, who admitted service in writing on the back and sent it to Braswell, who sent it to R. C. Dunn, plaintiff’s attorney. Braswell did not employ an attorney for defendant, but sent J. B. Laughter, the tenant on the land, to Halifax on 12 December, 1916, the return day of the summons, to attend to the case. The Court finds further that on the date the clerk informed Laughter that it would be necessary that an answer be filed, and that after the *122 answer was filed tbe county surveyor would be sent out to tbe land to run tbe respective contentions of tbe plaintiffs and tbe defendant, and tbat thereafter tbe court would bear and examine tbe true line; tbat tbis fact was communicated to Braswell by Laughter. Tbe action was continued from 12 December until a later date, and Laughter was informed by tbe clerk that it was necessary for tbe defendant to file an answer; tbat on said later date tbe plaintiffs appeared by their attorney, and Laughter also appeared. No answer having been filed, tbe action was again continued, and Laughter was informed by tbe clerk and by plaintiff’s attorney tbat it would be necessary that an answer be filed by the defendant and tbat as no answer was filed, tbe cause was again continued, by consent of tbe plaintiff’s attorney, until 29 January, 1917, tbe attorney notifying Laughter tbat unless answer was filed by- 29 January, 1917, be would move tbe court for judgment establishing tbe line between the-plaintiffs and tbe defendant as set out in the petition of tbe plaintiff. Tbis was not communicated to Braswell by Laughter. Tbe further fact is found that Braswell has for years been attending to tbe business of Mrs. Spruill in North Carolina, and she expected him to employ an attorney to represent her, and tbat Braswell would have attended to said matter but for tbe fact tbat Laughter incorrectly reported to him what tbe clerk bad said. Tbis is such a clear case of inexcusable neglect tbat tbe learned counsel 'for defendant are frank enough to say in their brief: “There is no question about tbe 'fact tbat M. 0. Braswell, agent of tbe defendant in this action, has been guilty of neglect, but tbe defendant contends tbat this-neglect is excusable and not imputable to the defendant in tbis action. Tbe defendant in New Jersey has been entrusting her affairs to M. 0. Braswell for a period of twenty-five years, and be has always promptly and efficiently attended to her affairs, and she has a right in tbis instance to rely upon tbe continuation of tbe same faithful and efficient service-which he has always rendered.” They cite no authority for their contention tbat the negligence of Braswell, a general agent, is not imputable to bis principal, tbe defendant. On contrary, we find it to be settled in tbis State tbat tbe inexcusable neglect of an agent will be imputed to tbe principal in a proceeding to set aside a judgment by default. Norwood v. King, 86 N. C., 80; Norris v. Insurance Co., 131 N. C., 212. There have been eases where tbe negligence of attorneys at law has been imputed to tbe client (Hardware Co. v. Buhmann, 159 N. C., 511), but it is not generally so. Where tbe party to an action employs a reputable attorney and is guilty of no negligence himself, and tbe attorney fails to appear and answer, tbe law will excuse the party and afford relief. Tbis is because attorneys are officers of tbe court and can do for *123 a client that which the client cannot do for himself. Therefore, the courts sometimes relieve the clients from the consequences of the attorney’s negligence. This subject is fully discussed by Mr. Justice Allen in the recent case of Seawell v. Lumber Co., 172 N. C., 324, and the authorities cited. But Braswell is not an attorney. lie is an extensive planter and business man in the adjoining county of Edgecombe. It was his duty to employ an attorney to appear and answer for Mrs.. Spruill. Instead he sent Laughter, the tenant on the land, to attend to a matter in court requiring the services of an attorney “learned in the law.” The clerk, with consent of plaintiff’s counsel, continued the cause repeatedly, notifying Laughter, who was in attendance, to have an answer filed. It was gross negligence on part of Laughter not to inform Braswell of this, and it was negligence on part of Braswell not to inquire of Laughter or the clerk as to the disposition of case. The defendant is not herself free from negligence. She admitted service of the summons on 16 November, 1916, and paid no further attention to the ease and made no inquiries concerning it until after 29 January, 1917, when judgment by default had been rendered. We are of opinion the judge erred in setting aside the judgment. Reversed.