Kerr v. North Carolina Joint Stock Land Bank

171 S.E. 367, 205 N.C. 410, 1933 N.C. LEXIS 571

Opinion

Pee, Cueiaji.

The findings of fact set out in the judgment are supported by the evidence offered at the hearing before the judge of the Superior Court. They are, therefore, conclusive, and not reviewable by this Court. Crye v. Stoltz, 193 N. C., 802, 138 S. E., 167; Turner v. Grain Co., 190 N. C., 331, 129 S. E., 725; Gaster v. Thomas, 188 N. C., 346, 124 S. E., 609. On the finding by the judge that the neglect of the defendant to file an answer to the complaint within'the time prescribed by statute, was not excusable, the motion of the defendant was properly denied. The further finding that the defendant had failed to show a meritorious defense to the cause of action alleged in the complaint, while supported by the evidence, is immaterial. C. S., 600.

Conceding that the inexcusáble neglect of the general counsel of defendant to prepare and file an answer to the complaint, as he was directed to do by the defendant, should not be imputed to the defendant (Helderman v. Hartsell Mills Co., 192 N. C., 626, 135 S. E., 627), we are of the opinion that the defendant is not free from blame. It does not appear that its general counsel was directed by the defendant to appear in its behalf in the Superior Court of Sampson County, where the action was pending, or that he undertook to enter such appearance. In Manning v. R. R., 122 N. C., 824, 28 S. E., 963, it is said: “Litigation must ordinarily be conducted by means of counsel, and hence, if there is neglect of counsel the client will be held excusable for relying upon tbe diligence of bis counsel,.provided be is in no default bimself. Roberts v. Allman, 106 N. C., 391, Burke v. Stokely, 65 N. C., 569. He must, however, not only pay proper attention to tbe cause bimself, but be must employ counsel wbo ordinarily practices in tbe court where tbe case is pending, or wbo is at least entitled to practice in said court, and engage to go thither. If be employ counsel whose duty is not to attend to tbe case bimself, but merely to select counsel wbo will do so, tbe first named counsel is pro hac vice an agent merely, bis duty not being professional, and bis neglect is tbe neglect of tbe party bimself, and not excusable. Finlayson v. Accident Co., 109 N. C., 196.” This principle is applicable to tbe instant case. The judgment is

Affirmed.