White v. Hans Rees' Sons

Walker, J. Tbis is a motion to set aside a judgment upon the ground of excusable neglect, under Revisal, sec. 513. It appears tbat the case was called for trial on Monday of October Term, 1907, and the defendants failed to. appear in person or by counsel. Tbe defendants and their counsel, a firm composed of three members, wbo resided in Asbeville, were notified by telegram tbat the case would be called at all events on the next day — -Tuesday. Tbe member of the law firm wbo bad special charge of the case was too sick to attend, but no sufficient excuse is shown for the failure of the other two members of the firm to attend, nor does it appear why the defendants did not attend the court. On Tuesday the case was called and tried. Judgment was rendered for the plaintiff. Tbe defendants at the same time moved to set aside the judgment upon the very grounds now assigned, but did not prosecute their motion. There was an appeal at tbat time from the judgment, upon the merits of the case, to tbis Court, which was dismissed here under Rule 17. No further action was taken in the matter until August Term, 1908, nearly a year after the judgment was rendered. Tbe court overruled the motion of the defendants to set aside the judgment, and the latter excepted and appealed. In no view of tbis case was there any excusable neglect. Tbe attorney having special charge of the case was too ill to look after bis clients’ interests, but the defendants were in fault. They did not attend the court on Monday, and received special notice tbat their case would be tried on Tuesday. Why did they not consult with .their counsel and attend tbat session of the court and at least ask for a continuance of the case ? They bad sufficient time to do so. “Tbe least tbat can be expected of a person having a suit in court is tbat be shall give it tbat amount of attention which a man of ordinary prudence usually gives to bis important business.” Per Rodman, J., in Sluder v. Rollins, 76 N. *680 C., 271. To the same effect are the cases of Waddell v. Wood, 64 N. C., 624; Kerchner v. Baker, 82 N. C., 169. As said by Dillard, J., in Kerchner v. Baker, supra, “The course of the defendant was not the care of an ordinarily prudent man in reference to his own personal interests, nor was it consistent with the proper deference and attention due from the defendant and every suitor to the known and orderly course and practice of the courts in the administration of the law.” The defendants have lost their rights, if they had any to protect, by their own inattention and inexcusable neglect. We have not deemed it necessary to set out all the findings of fact made by the judge, .which would,, perhaps, present the pase more strongly against the defendants than those we have briefly stated. It is sufficient to say that the judge, upon his findings, committed no error in law in adjudging that the defendants’ neglect was inexcusable. No Error.