Roediger v. . Sapos

Barnhill, J. The trial before the magistrate was had approximately six weeks prior to the convening of the term of the Superior Court at which the cause was heard. On demand of counsel for the plaintiff the case in the Superior Court had precedence on the calendar over all other cases, except cases involving exceptions to homesteads. C. S., 2373. It was properly called for trial at the beginning of the term. The defendant’s motion to set aside the verdict for that the plaintiff failed to state a cause of action, even if deemed to have been in apt time, cannot be sustained. The affidavit of plaintiff made in support of the summons issued by the magistrate sufficiently states a cause of action in summary ejectment. Furthermore, pleadings in a magistrate’s court are oral and will not be held insufficient for mere informality. *99 Tbe defendant did not request the court to set aside the verdict in the exercise of its sound discretion, which discretion rested in the judge during the continuance of the term at which the case was tried. Therefore, no question of abuse of discretion is presented or supported by the record. The defendant, in his brief, states the question presented for decision to be, “Is the defendant, Grus Sapos, entitled to a new trial on account of surprise and excusable neglect in this cause ?” It is upon this one of the several motions made that the defendant now seems to rely. It is now an accepted principle of law that when an attorney is retained generally to conduct a legal proceeding, he enters into an entire contract to follow the proceeding to its termination and hence cannot abandon the services of his client without sufficient cause and without giving proper notice of his purpose. Branch v. Walker, 92 N. C., 87; Gooch v. Peebles, 105 N. C., 411; Gosnell v. Hilliard, 205 N. C., 297, 171 S. E., 52; Ladd v. Teague, 126 N. C., 544; Newkirk v. Stevens, 152 N. C., 498, 67 S. E., 1013; U. S. v. Currie, 6 How., 106, 12 L. Ed., 363; Tenny v. Berger, 93 N. Y., 524, 45 A. L. R., 263. “An attorney who undertakes the conduct of an action impliedly stipulates to carry it to its termination and is not at liberty to abandon it without reasonable cause and reasonable notice.” Weeks on Attorneys at Law, sec. 265. The dual relation sustained by an attorney imposes upon him a dual obligation — -the one to his client, the other to the court, Waddell v. Aycock, 195 N. C., 268, 142 S. E., 10; Gosnell v. Hilliard, supra, and he can withdraw from a pending action in which he is retained only by leave of the court, Branch v. Walker, supra; Ladd v. Teague, supra; Gosnell v. Hilliard, supra, and only after having given reasonable notice to the client. While an attorney may sever his relation with a client for good cause, his withdrawal should not be allowed by the court in the absence of the client without a showing that he has notified his client or without giving the client ample opportunity to be heard. Spector v. Greenstein, 85 Pa., sup., R., 177; Gosnell v. Hilliard, supra. When defendant’s counsel undertook to withdraw from the case at the moment the cause was ordered to trial the court below should have denied him the right to do so. If counsel insisted upon withdrawing or declined to participate in the trial in defense of his client’s rights, he being an officer of the court, the judge had ample authority to require him to proceed in good faith. The conduct of the attorney in withdrawing from the case under the circumstances disclosed by this record, inadvertently-participated in by the judge in allowing such conduct, if the defendant had no notice of such purpose, constitutes “surprise” under C. S., 600. Manning v. R. R., 122 N. C., 824, 28 S. E., 963; Gosnell v. Hilliard, supra. *100 Rut tbe existence of surprise or excusable negligence standing alone is not sufficient under tbe terms of C. S., 600, to justify or require tbe vacation of a verdict or judgment by tbe court. It must further appear that tbe defendant has a meritorious cause of action or defense. Gosnell v. Hilliard, supra; Sutherland v. McLean, 199 N. C., 345, 154 S. E., 662; Parham v. Hinnant, 206 N. C., 200, 173 S. E., 26; Parham v. Morgan, 206 N. C., 201, 173 S. E., 27; Gooch v. Peebles, supra; Hooks v. Neighbors, 211 N. C., 382, 190 S. E., 236. In tbe Parham cases both tbe plaintiff and counsel were excusably delayed in arriving in court. When they appeared tbe case bad already been called for trial and dismissed as of nonsuit for failure of tbe plaintiff to appear and prosecute bis action. Upon a motion to reinstate tbe court beard tbe evidence from which it found that plaintiff’s cause of action was without merit and declined to reinstate. These judgments were affirmed on appeal. Tbe defendant moved to set aside tbe verdict as a matter of law. He failed to point out in tbe motion wherein tbe verdict was deficient. Neither does be direct our attention to any legal defect in tbe verdict in bis brief. If we assume that tbe defendant intended thereby to attack tbe validity of tbe verdict for tbe reason that it was rendered at a time when be bad been deprived by tbe court of tbe right to have counsel present at tbe trial, and such contention was supported by tbe record, then a most serious question would be presented. Whether tbe litigant is present in court or not when a case is tried be has tbe right, as a matter of law, to be represented by counsel who must, within reasonable bounds, be permitted to cross-examine tbe witnesses of bis adversary. S. v. Roberson, 215 N. C., 784, 3 S. E. (2d), 277, and to argue tbe cause before a jury. Howard v. Telegraph Co., 170 N. C., 495, 87 S. E., 313; Puett v. R. R., 141 N. C., 332; Irvin v. R. R., 164 N. C., 6. However, to so assume requires us to venture outside tbe record. Furthermore, tbe defendant not only failed to offer evidence of meritorious defense but be likewise failed to offer any proof that be was unaware that bis counsel would retire in tbe event tbe court declined to continue tbe cause, or that be was without notice thereof. Tbe court has found that tbe conduct of tbe defendant and of counsel was for tbe purpose of forcing tbe continuance of tbe case. Tbe finding that they were thus attempting to trifle with tbe court is supported by tbe evidence in tbe record. Under these circumstances it is just as reasonable to conclude that tbe withdrawal of counsel was with tbe full knowledge and approval of tbe defendant as it is to presume that be bad no knowledge thereof. Thus, on this record, it appears that there is no sound reason for disturbing tbe verdict or tbe judgment rendered thereon *101 by tbe court below. Tbe court will not do a vain thing, and it is unwilling to put itself in tbe position of assuming a condition wbicb does not appear from tbe evidence in order to belp a litigant wbo bas been so lacking in diligence in prosecuting a defense wbicb is apparently without merit. Tbe judgment below is Affirmed.