Opinion
(Filed 4 November, 1925.)
Judgments — Motions to Set Aside Judgments — Surprise and Excusable Neglect — Attorney and Client — Statutes.
A judgment will not be set aside for irregularity and surprise when it appears that it had come to issue and was regularly set upon the trial pocket, and judgment entered in the due course and practice of the court, the only grounds upon, which relief is sought being the employment of nonresident local attorneys, who were not notified though means of easy communication in ample time was available, the neglect of the attorneys being personally attributable to the party to the action, whose duty it was also to attend to the action himself, as well as to employ attorneys for the purpose. C. S., 600.
APPEAL from HYDE Superior Court. Calvert, J.
S. S. Mann for plaintiff.
Raper Raper and H. R. Kyser for defendant.
Motion by defendant to set aside judgment for irregularity, and under C. S., 600, for surprise. Affirmed.
This motion to set aside the judgment was upon two grounds, irregularity and surprise. The facts are as follows:
Summons issued from Hyde Superior Court 11 April, 1925, returnable 27 April, 1925, and served, with copy of complaint, 16 April, 1925. Answer filed 6 May, 1925, and plaintiff's reply filed 16 May, 1925. The next term of Hyde Superior Court convened 18 May, 1925. Plaintiff's reply denied the defendant's allegation of payment and discharge of indebtedness which constituted plaintiff's cause of action. The cause was called for trial 22 May, 1925, and the issues raised by the pleadings were submitted to a jury and the verdict rendered in favor of the plaintiff in the sum of $474.45, with interest from 19 May, 1922, and judgment in regular form rendered for this amount, with costs.
It further appears that plaintiff is a corporation operating in North Carolina with "domicile" in the county of Hyde. Defendant corporation is a North Carolina corporation, resident in Davidson County, North Carolina, and that defendant employed counsel resident in Davidson County, practicing there and in adjoining counties, where it is the custom to make out civil calendars, which custom prevails in Hyde County, but no calendar was made for the last two terms, a memorandum of the cases being prepared by the clerk for information. The Court further finds that more than 10 days elapsed from the filing of the defendant's answer which raised the issues, the reply of plaintiff not being required, and that United States mails are delivered from Belhaven to the county seat of Hyde County every day except Sunday, and there is a telegraph station at Belhaven, N.C. with long-distance telephone communication between Belhaven and Swan Quarter, N.C. and that telegraphic messages are transmitted to Swan Quarter, N.C. by telephone; that there are other lawyers residing at Swan Quarter, N.C. than plaintiff's counsel, and that the State Highway from Belhaven to Swan Quarter was in passable condition and that the defendant's agents and attorneys could have reached Swan Quarter between 6 May, 1925, and 18 May, 1925, and that communication could have been had by defendant with county officials and counsel in Hyde County within this time.
There is no irregularity whatever in this case, and unless the defendant's negligence is excusable there is no relief. As well said in Pepper v. Clegg, 132 N.C. 312: "A lawsuit is a serious matter and parties must give it that attention which a prudent man gives to his important business." Sluder v. Rollins, 76 N.C. 271; Roberts v. Allman, 106 N.C. 391, and that the employment of counsel does not excuse the client from giving proper attention to the case. McLean v. McLean, 84 N.C. 366; Vick v. Baker, 122 N.C. 98; Norton v. McLaurin, 125 N.C. 185; Manning v. R. R., 122 N.C. 824, 831. This latter case does not approve of "attending to legal proceedings at long range." Chief Justice Clark, in Pepper v. Clegg, supra, expressed much wisdom when he said: "When a man has a case in court the best thing he can do is to attend to it."
In these motions the Court cannot lose sight of the rights of the party who has been diligent and has sought his remedy according to the course and practice of the Court. If there is hardship as between the parties, it must be borne by, him who was not diligent, unless the facts come within the purview of C. S., 600. The facts in the instant case are not sufficient to afford relief. The judgment appealed from is
Affirmed.