From Casetext: Smarter Legal Research

Shepherd v. Shepherd

Supreme Court of North Carolina
Dec 1, 1920
105 S.E. 4 (N.C. 1920)


(Filed 1 December, 1920.)

1. Appeal and Error — Record — Findings — Judgments — Motions.

In passing upon an appeal from the refusal of the Superior Court judge to set aside a judgment, his finding that the motion was solely based upon excusable neglect will preclude the further ground that the judgment was not regularly entered.

2. Judgments — Motions — Excusable Neglect.

It is inexcusable and gross neglect for a plaintiff to take out claim and delivery in his action, fail to file his complaint, and permit a judgment by default to be taken against him according to the course and practice of the courts; and his motion to set aside the judgment for excusable neglect therein will be denied.

3. Appeal and Error — Objections and Exceptions — Judgments — Motions — Irregular Judgments — Evidence — Findings.

Exception to the refusal of the Superior Court judge to consider the evidence on a motion to set aside a judgment, relating to its having been irregularly entered, or to grant the motion on that ground, should be taken at that time, with request that the judge find the necessary facts.

4. Appeal and Error — Assignments of Error — Exceptions — Attorney and Client.

It is necessary that assignments of error be based upon exceptions duly taken and in apt time, which it is the duty of appellant's attorneys to do, and an assignment of error not based upon an exception will not be considered on appeal.

APPEAL from Lane, J., at July Term, 1920, of MONTGOMERY.

J. C. Sedberry and R. T. Poole for plaintiff.

J. A. Spence for defendants.

This is a motion to set aside a judgment for excusable neglect. The original motion was also based on another ground, it being that the judgment was irregularly taken, having been rendered contrary to the course and practice of the court, but the judge finds as a fact that at the hearing the only ground alleged was excusable neglect. He found the facts and refused to set aside the judgment.

The action was brought by the plaintiff to recover a five-passenger Overland automobile, and under claim and delivery proceedings the car was taken from the defendants and delivered to the plaintiff, who filed no complaint and paid no further attention to the case. Defendants answered by setting up a counterclaim based on false representations as to the condition of the car, and false warranty. Issues were submitted to the jury, and they found that plaintiff did not own the car; that he had made the false and fraudulent representations which deceived the defendants and induced them to exchange a mare with buggy and harness and $250 "as boot," for the car, and assessed their damages at $305. Judgment was entered upon the verdict, and plaintiff appealed.

after stating the case: As the judge found as a fact that plaintiff moved to set aside the judgment only upon the ground of excusable neglect, nothing else is before us. It is so palpable that plaintiff was guilty of inexcusable neglect, that it is unnecessary to discuss the evidence and the findings. The plaintiff obtained possession of the car under the claim and delivery proceedings and seemed to think that nothing more was required to be done by him. He filed no complaint, and did not attend court to look after his case, but left it to take care of itself, having completely abandoned it. He did retain an attorney, but one who resided in another county, and who did not attend the court at the term he knew the case had been calendared for trial. Jernigan v. Jernigan, 179 N.C. 237, and cases cited. There was evidence that he stated to a witness that if anything more was done in the case it must be done by some one else, as he was not going to do anything. It is no wonder that his Honor, upon the evidence, found that plaintiff had been negligent without any excuse for it, as it appears to have been a case of gross negligence. We have often held that a party to a suit in court should give it such attention and care as a man of ordinary prudence usually bestows upon his important business. McLeod v. Gooch, 162 N.C. 122; Waddell v. Wood, 64 N.C. 624; Sluder v. Rollins, 76 N.C. 271; Roberts v. Allman, 106 N.C. 391; Pepper v. Clegg, 132 N.C. 312; Manning v. R. R., 122 N.C. 824; Norton v. McLaurin, 125 N.C. 185; Lumber Co. v. Cottingham, 173 N.C. 323; Land Co. v. Wooten, 177 N.C. 248. A recent case much in point is Jernigan v. Jernigan, supra, which we have already cited for another purpose.

If defendant intended to insist on the ground that the judgment was irregular, he should have made it known, or, at least, should distinctly have excepted at the time, because the judge did not consider it or find the facts in regard to it. An assignment of error not based upon an exception duly and properly taken is not sufficient. The preparation of the assignment of error is the work of the attorney for the appellant, and is not a part of the case on appeal; and its office is to group the exceptions noted in the case on appeal; and if there is an assignment of error not supported by an exception, it will be disregarded. Worley v. Logging Co., 157 N.C. 490; McLeod v. Gooch, 162 N.C. at p. 124; Harrison v. Dill, 169 N.C. 542-544. If a party desires any special facts to be found, he should request it; otherwise, we presume the judge found such facts as will support the judgment. Albertson v. Terry, 108 N.C. 75; Hardware Co., v. Buhmann, 159 N.C. 511; McLeod v. Gooch, 162 N.C. at p. 124.

The plaintiff has lost his rights, if he had any, by his own laches, and has himself to blame for the result.


Summaries of

Shepherd v. Shepherd

Supreme Court of North Carolina
Dec 1, 1920
105 S.E. 4 (N.C. 1920)
Case details for

Shepherd v. Shepherd

Case Details


Court:Supreme Court of North Carolina

Date published: Dec 1, 1920


105 S.E. 4 (N.C. 1920)
105 S.E. 4

Citing Cases

Elramy v. Abeyounis

In this respect the present case is easily differentiated from Nicholson v. Cox, 83 N.C. 49; Sikes v.…