Manning v. Roanoke & Tar River Railroad

Clark, J.: The summons having in fact been served, any irregularity in the signature of the officer to the return of service was corrected by the affidavit showing that the deputy serving the summons had been duly appointed by the sheriff. It was a full and complete amendment of the return, and related back and had the same effect as if the amended return had been originally made. Grady v. Railroad, 116 N. C., 952. The defendant having in fact been served with process by a propei ly authorized officer, cannot be prejudiced by an amendment which merely makes the record speak the truth. Litigation must ordinarily be conducted by means of counsel, and, hence, if there is neglect of counsel the *828 client will be held excusable for relying upon the diligence of bis counsel, provided he is in no default himself. Roberts v. Allman, 106 N. C., 391; Burke v. Stokely, 65 N. C., 569. He must, however, not only pay proper attention to the cause himself, but he must employ counsel who ordinarily practice in the court where the case is pending, or who are at least entitled to practice in said court and engage to go thither. If he employ counsel whose duty is not to attend to the case himself, but merely to select counsel who will do so, the first named counsel is pro hac vice an agent merely, his duty not being professional,, and his neglect is the neglect of the party himself, and not excusable. Finlayson v. Accident Company, 109 N. C., 196, at p. 200, citing Churchill v. Insurance Company, 92 N. C., 485; Griffin v. Nelson, 106 N. C., 235; Boing v. Railroad, 88 N. C., 62. In the present instance, the summons was sent to the general counsel of the defendant, resident in Norfolk, Ya., who had no authority to practice in this State, not having obtained license so to do in the manner required by The Code, Section 17, and, in fact, being debarred as a citizen of another State from so doing by Section 19, which requires all attorneys to take an oath of allegiance to this State. That said non-resident had appeared in some causes in this State does not militate against this, since the appearance of such counsel is a matter of courtesy in each and every case, and on motion in each case, and only for the occasion on which it is allowed. The statute forbids the courts from allowing non-resident counsel (when citizens of other States and not holding license from this Court) from practicing habitually in our courts, and they cannot acquire the right to do so. Besides, even if the general counsel of the defendant, *829 to whom the summons was sent, had been counsel regularly authorized and empowered to practice in the courts of this State, it does not appear that he was in the habit of attending regularly the courts of Bertie county, or especially agreed to attend the term of said court on this matter, and in the absence of such proof the defendant has not shown that it has paid proper attention to the case, and that its neglect was excusable, and this burden was on the defendant. Kerchner v. Baker, 82 N. C., 169. It is no doubt very convenient for the defendant to have a general counsel to whom notice of the service of process can be sent, who shall parcel out the legal’ matters of the company and select local counsel to whom each case shall be entrusted; but in doing this the general counsel is simply discharging the duty the president or any other officer of the company could discharge, and is pro hac vice acting merely as an agent of the defendant, and not as an officer of the Court; hence, his neglect cannot excuse the defendant. The defendant has the same rights as any other litigant. Neither more nor less. The law requires the summons to be served ten days before court, to give defendants time to secure counsel. There is no greater time allowed one class of defendants than others. In fact,this defendant was served with process 35 days before the first day of the court at which it was summoned to appear. It was its duty to employ, like any other litigant, an attorney regularly practicing in the court where the action was brought, or who agreed to be there to represent the defendant. There is no reason why it should delay to employ counsel till the answer was filed. If the defendant’s “system” of procuring counsel does not enable it to file its answers in the time *830 required of other defendants, it must change its methods to conform to the requirements of the law instead of asking that the courts give it special iDrivileges. The summons on its face commanded the defendant to be at said court on the first day thereof and to answer at that term. It is true the plaintiff is given three days in which to file the complaint, but this is a privilege to the plaintiff, not to the defendant. The plaintiff might file his complaint before the expiration of the three days or even before court met. The duty of the defendant, by the terms of the summons, is to be at court on “the first day” thereof to answer the complaint whenever filed, and with the right to have the action dismissed if it is not filed, within the first three days thereof. But the right to take advantage of the plaintiff’s failure to file the complaint in the first three days in no wise repeals the mandate to the defendant to appear on the first day of the term and to answer at that term. The defendant is simply protected against being detained longer than three days to see the complaint. In this case the complaint was filed on Wednesday and the court did not adjourn till Friday. There is nothing to show that the answer could not have been filed if the defendant had employed counsel who were practicing in that court and who had engaged to be present. If the time had proved too short, the court, on motion, was empowered to extend the time. Code, Section 274. But no counsel was there, nor was such motion made. In fact, defendant avers that its general counsel in Norfolk was waiting for the clerk to send him by mail a copy of the complaint when filed. Before it could have gotten to him (even if he had been at his office), and the answer could have been prepared and returned, the court had adjourned. *831 . Our laws do not recognize this leisurely, kid-glove and dilettante manner of attending to legal proceedings at long range. What would . be left of the statute if every defendant demanded the same privilege of answering at his own convenience or by his own system? All litigants are on a level in our courts, subject to the same statutes and required to pay the same attention to matters before the courts. As the answer was not filed at the first term, the plaintiff was under the law entitled to his judgment against this defendant, as he would have been against any other. Williams v. Railroad, 110 N. C., 466, is overruled. Upon the facts found there was not excusable neglect and his Honor correctly ruled that he was not authorized to set the judgment aside. It is only when there is excusable negligence (and not when there is inexcusable negligence) that the Judge can in his discretion set the judgment aside or' refuse to do so, and the exercise of such discretion is not reviewable. Stith v. Jones, 119 N. C., 428. The defendant moves to dismiss the action in this Court because the complaint fails to state a cause of action. This is a motion which can always be made in this Court, though not made below, and even when there has been a jury trial, verdict and judgment. Rule 27; Ladd v. Ladd, 121 N. C., 118. The complaint, however, does state a cause of action. Britton v. Railroad, 88 N. C., 536, and other cases cited in Daniel v. Railroad, 117 N. C., 592, at p. 608. No error.