Queen v. Gloucester Lumber Co.

Supreme Court of North Carolina

Queen v. Gloucester Lumber Co.

87 S.E. 325, 170 N.C. 501, 1915 N.C. LEXIS 438

CourtSupreme Court of North Carolina

DecidedDecember 22, 1915

StatusPublished

Cited by2 cases

This text of 87 S.E. 325 (Queen v. Gloucester Lumber Co.) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Queen v. Gloucester Lumber Co., 87 S.E. 325, 170 N.C. 501, 1915 N.C. LEXIS 438 (N.C. 1915).

Pincite

Opinion

AlleN, J.

The defendant has shown no reasonable excuse for its negligence in failing to defend the action and to prevent the recovery of judgment.

The frequent admonition, that “when a man has a case in court the best thing he can do is to attend to it” (Pepper v. Clegg, 132 N. C., 315; McClintock v. Insurance Co., 149 N. C., 36; Lunsford v. Alexander, *503 162 N. C., 530), bas not been beeded, nor bas tbe defendant measured up to tbe degree of diligence required in tbe orderly conduct of an action in court. -

“It is not enough tbat parties to a suit should engage counsel and leave it entirely in bis charge. They should, in addition to this, give it tbat amount of attention which a man of ordinary prudence usually gives to his most important business.” Allen v. McPherson, 168 N. C., 437.

In this action the defendant employed counsel who was not a resident of the county where the action was pending, and its excuse for not being present at tbe trial is tbat it relied upon his promise to employ local counsel and to inform it of tbe time of trial. This would not ordinarily’ justify the defendant in giving no further attention to the matter, but if permitted to prevail, in the absence of other facts, as ground for setting aside tbe judgment, it appears from the findings of fact tbat tbe counsel who bad been employed became ill in July, 1913, immediately after tbe answer was filed; that he was not thereafter able to attend to any bush ness, and tbat he died in October, 1913, and that during seven months intervening between tbe death, which was known to the defendant, and the recovery of judgment the defendant made no effort to .employ other counsel and took no steps to defend the action.

Would any man of ordinary prudence employ an agent to attend to important business in bis absence, and, after bearing of his death, delay seven months to appoint another agent or to inquire what had become of his business interest?

We think not, and if this would be inexcusable negligence in the ordinary affairs of life, tbe degree of care is not less when one is called upon to defend an action in tbe courts. Vigilantibus et non dormientibus jura subveniunt.

Affirmed.

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AlleN, J.

The defendant has shown no reasonable excuse for its negligence in failing to defend the action and to prevent the recovery of judgment.

The frequent admonition, that “when a man has a case in court the best thing he can do is to attend to it” (Pepper v. Clegg, 132 N. C., 315; McClintock v. Insurance Co., 149 N. C., 36; Lunsford v. Alexander, *503 162 N. C., 530), bas not been beeded, nor bas tbe defendant measured up to tbe degree of diligence required in tbe orderly conduct of an action in court. -

“It is not enough tbat parties to a suit should engage counsel and leave it entirely in bis charge. They should, in addition to this, give it tbat amount of attention which a man of ordinary prudence usually gives to his most important business.” Allen v. McPherson, 168 N. C., 437.

In this action the defendant employed counsel who was not a resident of the county where the action was pending, and its excuse for not being present at tbe trial is tbat it relied upon his promise to employ local counsel and to inform it of tbe time of trial. This would not ordinarily’ justify the defendant in giving no further attention to the matter, but if permitted to prevail, in the absence of other facts, as ground for setting aside tbe judgment, it appears from the findings of fact tbat tbe counsel who bad been employed became ill in July, 1913, immediately after tbe answer was filed; that he was not thereafter able to attend to any bush ness, and tbat he died in October, 1913, and that during seven months intervening between tbe death, which was known to the defendant, and the recovery of judgment the defendant made no effort to .employ other counsel and took no steps to defend the action.

Would any man of ordinary prudence employ an agent to attend to important business in bis absence, and, after bearing of his death, delay seven months to appoint another agent or to inquire what had become of his business interest?

We think not, and if this would be inexcusable negligence in the ordinary affairs of life, tbe degree of care is not less when one is called upon to defend an action in tbe courts. Vigilantibus et non dormientibus jura subveniunt.

Affirmed.

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87 S.E. 325, 170 N.C. 501, 1915 N.C. LEXIS 438, Counsel Stack Legal Research, https://law.counselstack.com/opinion/queen-v-gloucester-lumber-co-nc-1915.

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