Roberts v. . Allman

11 S.E. 424, 106 N.C. 391

• Court: Supreme Court of North Carolina
• Decided: February 5, 1890
• Status: Published

Opinion

Clark, J.:

We discover nothing to constitute this an irregular judgment. The defendants might have moved at November Term, 1883, to dismiss the action for failure to file the complaint within the first three days of the term. The Code, 206. This was not done. Even if the complaint had been filed after the close of that term, it would have been on file during the first three days of next term., and the judgment by default might have been then rendered if no answer were filed at that term. In fact, it was not taken until November Term, 1884.

Nor was the summons irregular. It was evidently intended for Fall Term, 1883, and defendants could not have been misled by it. In truth, their affidavit says they employed counsel to represent them at that term. Besides, “a general appearance to an action cures all antecedent irregularity in the process (as here by attending before the referee), and places defendant upon the same ground as if he had been personally served with process.” Wheeler v. Cobb, 75 N. C., 21, and cases cited. The defendants, however, were in fact served with a summons, and were bound to take .notice of all subsequent proceedings. Stancill v. Gay, 92 N. C., 455.

While an irregular judgment will be set aside upon motion within any reasonable time, this will only be done when the irregularity complained of is so serious in its nature as to render the judgment void, or seriously injure and prejudice the moving party (Williamson v. Hartman, 92 N. C., 236), and not unless the moving party has exercised due diligence in seeking relief. Stancill v. Gay, supra. Plere the irregularity, if any, was not of a serious nature, and defendants have shown no diligence in seeking relief.

Nor should the judgment have been set aside for excusable neglect. The summons having been personally served, a motion upon that ground could only be made within one year after the rendition of the judgment. The Code, § 274; McLean v. McLean, 84 N. C., 366. The grounds assigned in the affidavit in this case would have been insufficient, even had the motion been made within one year after judgment. Whitson v. Railroad, 95 N. C., 385; Henry v. Clayton, 85 N. C., 371. “ A defendant does not abandon all care of his case when he has engaged counsel to look after it,” yet this seems to be what defendants did, according to their own showing. They.failed “ to give that amount of attention to the case which a man of ordinary prudence usually gives to his important business.” Sluder v. Rollins, 76 N. C, 271.

Per Curiam: No error.