Kivett v. . Wynne

Ashe, J. Notwithstanding the 133d section of the Code, upon which the defendants’ motion is based, provides that the judge may in his discretion relieve a party from a judgment, order, or other proceeding, on account of mistake, &c., and matters of discretion are not reviewable, there have been some seventy-five or eighty appeals from judgments founded upon the provisions of this section, and “still they come.” Among such a number of appeals, a great many are found lying so closely along the line of- distinction between a clear and undisputed exercise of discretion and the abuse of discretion, or the poioer to exercise it, that it is often very difficult to decide upon which side of the line a case falls. But there can bo no doubt here. There was no question arising as to the power, and there was no abuse of the discretion given the judge by the law. The defendants were guilty of very great laches, or at least indifference to the progress of their suit. They most probably heard of Mr. McKay’s death; but they did not attend court at the return term or employ counsel, and after judgment by default was rendered against them, and a proposition to compromise, ■ they gave themselves no concern ■about the case. Then would have been the time that a man of •ordinary diligence would have applied for relief, if he believed he had any merit in his case. But the defendants failed to attend the next term of court or employ counsel, when a final judgment was rendered against them, and they never awoke to *42 the condition of their case until execution was isued ■ against them. The defendants are guilty of gross laches, and it is needless to-cite any authority upon that point. They can be found all along the line of decisions upon cases arising under section 133, from Thomas v. Womack, 64 N. C., 657, down to those reported in the last volume of the Reports. There is, in this case, no blame to be attached to the defendants’ attorneys, as in Griel v. Vernon, 65 N. C., 76, and Deal v. Palmer, 68 N. C., 215. The judgment of the superior court is affirmed. No error. Affirmed.