Carter v. . Anderson

181 S.E. 750, 208 N.C. 529, 1935 N.C. LEXIS 72

• Court: Supreme Court of North Carolina
• Decided: October 9, 1935
• Status: Published

Opinion

OlarksoN, J.

The question presented: Did appellants, defendants in the trial court, exercise due care and diligence in the preparation and trial of the case against them sufficient to justify the vacating and setting aside of the judgment rendered against them in the Superior Court of Madison County, N. O. ? We think not.

This is a motion by defendants to set aside a judgment for excusable neglect, under N. C. Code, 1931 (Michie), sec. 600, which, in part, is as follows: “The judge shall, upon such terms as may be just, at any time within one year after notice thereof, relieve a party from a judgment, order, verdict, or other proceeding taken' against him through his mistake, inadvertence, surprise, or excusable neglect, and may supply an omission in any proceeding,” etc.

A judgment may be set aside under this section if the moving party can show excusable neglect, and that he has a meritorious defense. Dunn v. Jones, 195 N. C., 354; Bowie v. Tucker, 197 N. C., 671.

In Helderman v. Mills Co., 192 N. C., 626 (629), it is said: “The negligence of the attorney, upon the facts found, even if conceded, will not be imputed to defendant, who was free from blame. Edwards v. Butler, 186 N. C., 200.”

In the present cause the court below found the facts. There was sufficient competent evidence to support these findings of fact, and therefore conclusive upon appeal by defendants to this Court. Helderman v. Mills Co., supra, p. 628.

Upon the facts found, we do not think the judgment should be set aside on the most liberal construction of the act. The court below found that defendants were to blame. “That the defendants and their attorney had not exercised due diligence in the defense of their cause.” The case was calendared for trial- at the March Term, 1934, of the Superior Court of Madison County, N. C. Defendants brought their attorney with them from another county. A motion was made to the court by their attorney, the defendants being present, to continue the case. The court denied this motion. The defendants and their attorney left the court without any definite agreement with the court of the attorneys for the opposition and never returned to defend the case.

We do not think Sutherland v. McLean et al., 199 N. C., 345, cited by defendants, applicable to the facts in this case. In that case the client was relying on his attorney and had no personal knowledge of the situation. In the present case, the defendants were in court and knew that the court had refused to continue their case; notwithstanding this, they and their attorney left the court without any definite agreement with the court or with the opposing counsel.

For the reasons given, the judgment of the court below is

Affirmed.

Sohenok, J., took no part in the consideration or decision of this case.