Whitson v. Western North Carolina Railroad

95 N.C. 385

• Court: Supreme Court of North Carolina
• Decided: October 5, 1886
• Status: Published

Opinion

Smith, O. J.

(after stating the case). The distinction made in the early case of Griel v. Vernon, 65 N. C., 76; and recognized in numerous subsequent adjudications, is between personal neglects of the suitor and neglects of his counsel, and the latter are held not to be so attributable to the suitor as to deprive him of the advantages of the enactment.

Where he employs counsel and communicates the merits of his case to such counsel, and the counsel is negligent, it is excusable on the part of the client, who may reasonably rely upon the counsel’s doing what may be necessary on his behalf. But the principle does not extend so far as to excuse all attention to the cause after the employment of counsel, so that the inattention of both may run over years of time. It is so decided in McLean v. McLean, 84 N. C., 366. Ordinarily, a cause is put at issue at one Term, and stands for trial at the next. Counsel should be informed of the defence after the complaint is filed, and the purpose of the action known, and it is the duty of a defendant to furnish the required information in order that the answer may be drawn. Wynne v. Prairie, 86 N. C., 73.

The necessity of communicating the facts to counsel must have been understood by the company. Under the old practice, the reasons for this were less forcible, since the defence was in mere memoranda entered upon the docket in the cause. But acquitting the defendant of negligence in this, no kind of attention seems to have been given to the action until after another Term of the court had passed, and the defendant’s activity quickened only a few days before the • arrival of another Term. Was there no personal remissness in this, aside from neglect of counsel? Is a defendant to abandon all care of his case when he has engaged counsel to look after it? May this condition of things continue indefinitely until the lapse of time interposes? We concur with the court that there was culpability on the part of the defendant, and that it finds no excuse in the mere employment of counsel without further action or notice on its part for so long a space afterwards. Geer v. Reams, 88 N. C., 197; Churchill v. Insurance Company, Ibid., 205.

There is no error, and this will be certified, that the cause may proceed in the court below.

No error. Affirmed.