McLeod v. . Gooch

"Walker, J. There are no findings of fact in tbe record as to excusable neglect. Tbe judge, at tbe bearing, merely denied tbe motion. In tbe absence of tbe findings, we must presume that tbe judge found such facts as would support bis ruling, for we do not presume error, but tbe appellant must sbow it, tbe burden of doing so being upon him. If be wished to review tbe decision of tbe court, be should, in apt time, have requested a finding of tbe facts. Albertson v. Terry, 108 N. C., 75; Hardware Co. v. Buhmann, 159 N. C., 511. This is tbe well settled practice. Tbe plaintiff, it is true, states in one of bis assignments of error that such a request was made and refused, but an assignment of error, as we have repeatedly held, must be based upon an exception duly taken during tbe trial of an ‘action or-tbe bearing of a motion, and there is no such exception, and nothing in tbe record to sbow that tbe request was made and refused. “Tbe preparation of tbe assignment of error is tbe work of tbe attorney for tbe appellant, and is not a part of tbe case on appeal, and its office is to group tbe exceptions noted in tbe case on appeal; and if there is an assignment of error not supported by an exception, it will be disregarded.” Worley v. Logging Co., 157 N. C., 490. ¥e have, nevertheless, examined tbe affidavits filed by tbe plaintiff in support of bis motion, and find nothing stated therein which tends to show a case of excusable neglect. Tbe case was pending in tbe court nearly two years before tbe trial was bad and tbe judgment rendered at April Term, 1912, and no steps were ever taken to ascertain when it would be called for trial. It *125 seems that plaintiff and his counsel relied on the clerk or some one else to notify them of the time, but there was no legal obligation resting upon any one to do so, and no request was made to the clerk or to opposing counsel to give the information, so far as appears, and no promise made by them, or either of them, to give seasonable notice, of the time when the case would be reached in regular order on the calendar. The motion was first made before Judge Whedbee, to set aside the judgment, but plaintiff failed to appear at the time appointed for the hearing of the same, and he then moved before Judge Peebles to set aside the judgment and the former order of Judge Wheel-bee denying the first motion. The judgment was rendered at April Term, 1912, motion to set it aside made 10 July, 1912, nearly three months afterwards, and July Term, 1912, set for the hearing. The defendant did not appear in person or by counsel at that term, but the court allowed plaintiff time to file additional affidavits, and Tuesday of the next (November) term was set as the day for hearing the motion. It appears that plaintiff’s counsel, by letter of 1 November, 1912, requested of defendant’s counsel that the time for the hearing be changed to Wednesday, the 27th, and plaintiff’s counsel agreed to this date, “if convenient to the judge,” but insisted that the motion be heard during the term. The court adjourned on the 26th, the day first set for the hearing. If counsel of defendant had agreed unconditionally that the motion should be heard on the 27th, our decision might be different, but they did not, and plaintiff should not have relied upon the conditional promise, as he was warned by the terms of. the letter that the term might end before the 27th, and if so, it would not be convenient to the judge to hear the motion, and he was further notified that if the court did adjourn before the 27th, “the matter would be disposed of” by the judge before adjournment. The terms of the letter gave the plaintiff full notice that his presence, or that of his attorney, was required on Tuesday of the term, in order to protect his interests, and that delay was dangerous. He should not have taken the chance of the court continuing in session until Wednesday, the 27th, in the circumstances; and having taken it and lost his day in court, he must abide the *126 consequences. He was making serious charges against the defendant, and should not have trusted to his favor or leniency. Defendant’s counsel were as liberal towards him as he had a right to expect and as was consistent with their plain duty to their client. Plaintiff should have employed resident counsel to watch the calendar, or he should, at least, have seen that his nonresident counsel attended the court and remained on guard to take care of his interests, or, as another alternative, that he had a more definite agreement with plaintiff’s counsel as to the time for the hearing. Instead of this, there was inattention and seeming indifference throughout the progress of the case. The undisputed facts do not show a case of excusable neglect. White v. Rees, 150 N. C., 678. A party has no right to abandon all active prosecution of his case simply because he has retained counsel to represent him in the court. We have held that he must bestow that attention and care upon it which a man of ordinary prudence usually gives to his important business. Roberts v. Allman, 106 N. C., 391. It seems that the defendant has recovered judgment for about $215 more than, in law and good conscience, he is entitled to have, and plaintiff’s application to be relieved of the judgment appeals strongly to our sense of justice and right. Defendant bought the machine for $250, paid $60, and now owes $190 on the price. He has a judgment for $275. Now, deducting the $60 paid by defendant, the latter has made a clear gain of $215, unless he pays the $190, and we infer that he is insolvent. Plaintiff has the property, to be sure, but he must pay $215 and the costs for the privilege of keeping it. It appears to be a very hard case, but by his own .neglect he has deprived us of the power to help him by requiring the defendant to deal fairly and account for the price of the property, which he promised to pay at the time he received the machine and as a condition of acquiring the title thereto. This is taking the plaintiff’s statement of the transaction between them. The defendant denies it, but the fact remains that he will receive far more than he has parted with. In law, however, he is entitled to keep it, because the plaintiff has slept soundly upon his rights, and the Court, therefore, cannot aid him. If he'had been vigi *127 lant as tbe defendant was, and as alert and enterprising, be would not bave lost tbem. We are not now passing upon tbe merits, however. They may all be with tbe defendant, as tbe facts, perhaps, have not yet been fully disclosed. Tbe plaintiff contended that tbe judgment was irregular or taken contrary to the course and practice of the court, but be made no sucb point below, and the judge, therefore, has not passed upon it. This proceeding, though, will not bar him from moving to set aside tbe judgment upon tbe ground of irregularity, and bave it vacated, if tbe facts and tbe law will sustain sucb action by tbe court. Brock v. Scott, 159 N. C., 513. There was no error that we can discover in tbe rulings of the court upon the motions. No error.