Opinion
June Term, 1823.
When a defendant, from the beginning, neglects his case on very insufficient grounds, whereby a default is rendered against him, and afterwards employs counsel to attend to the business who does not practice in the court, he is not entitled to the indulgence of the court, and shall not claim any because of the absence of his counsel.
THE plaintiff had issued a writ against the defendant for having committed an assault and battery on him, which was returned to September Term, 1822, of SAMPSON, at which term a judgment by default was entered, and at the succeeding term, in April, 1823, a writ of inquiry was executed, and a jury assessed the plaintiff's damages to five hundred dollars and costs. On Friday of that term the defendant moved on affidavits filed for a rule to show cause why a new trial should not be granted. The rule was granted, and on argument, afterwards discharged and judgment rendered, from which defendant appealed. The substance of the affidavits, which made part of the case sent up, follows: "The defendant made oath, that before the writ was served on him he wrote to Mr. Henry, an attorney of Fayetteville, to employ him in the suit which he then anticipated would be commenced by this plaintiff; that receiving no answer to this letter, he was therefore induced to believe Mr. H. would appear for him; that he continued to entertain this belief until he was undeceived by Mr. H. in March, 1823, at Duplin Superior Court. The defendant then procured other counsel, who, after conference with plaintiff's attorneys, informed the defendant that, by an arrangement made between the counsel, the attendance of the defendant at Sampson court would not be necessary before Friday of the term, and that defendant believed, if he might be heard, that he could prove that the fight was as much owing to (333) the plaintiff as the defendant.
From the affidavit of Mr. Farrier, the defendant's attorney, it appeared that in March, 1823, the defendant employed him in Duplin court to attend to this cause; that the defendant preferred the services of Mr. F. because he had defended him on an indictment for the same cause in Duplin County court; that the defendant then informed Mr. F. that the next term of Sampson court was the return term of the writ, and his attendance would only be necessary to remove the cause to another county; but in the following week at Wayne court the defendant informed Mr. F. that the next term of Sampson court was the trial term of the cause. Mr. F. then had an interview with Mr. Meares, one of the attorneys for the plaintiff, and informed him that as Sampson Superior Court was held at the same time with Duplin County court, it would be impossible for Mr. F. to attend Sampson court earlier than Friday of the term, and asked of Mr. M. a postponement of the suit until Friday. Mr. M. stated that it was not in his power to postpone it, but he would state the facts to the court, and if it approved of it, he would make no objections, and on the whole thought it probable, as Thursday would be occupied with State prosecutions, the cause would not be reached before Friday.
Mr. Henry's affidavit stated that he had received a letter from the defendant, to which he had not attended from particular reasons; that the defendant had not sent him any retaining fee and he therefore did not consider himself employed, and that when he next saw defendant he informed him he was employed by the plaintiff.
Mr. Meares stated in his affidavit that in March, 1823, the defendant wished to employ him in this suit, but Mr. M., having been retained by the plaintiff, could not appear for the defendant, but informed him of several gentlemen of the bar unemployed in the case, who attended Sampson court; that in the following week Mr. Farrier (334) and Mr. Meares had a conversation relative to the suit, and Mr. F. requested the cause might be laid over until Thursday of the term, to which Mr. M. replied, in substance, that he should have no objection, if the court would permit it, and it would not operate as a continuance, but the he believed the situation of the docket was such in Sampson that the day could not take place without its operating as a continuance, and that he was not authorized to consent to a continuance.
The affidavits show that there is no ground on which the Court would grant a new trial. The defendant Barfield neglected the case from the beginning, on very insufficient reasons, whereby a default was taken against him, and afterwards on the trial incurred the risk of a counsel's attendance who did not practice in the court, while he was told of others that would be in attendance. To award a new trial for the reasons here offered were to encourage inattention and promote litigation.
PER CURIAM. No error.