#### JOHN B. SUTHERLAND v. R. C. McLEAN and J. O. FAYSOUX.

(Filed 10 September, 1930.)

1. Judgments It 5) — Judgment by default may be set aside by defendant without fault who has employed counsel of another county to appear therein.

An attorney who has obtained a license to practice law from the Supreme Court has a right to practice in the courts of all the counties of the State, and where a client has employed a licensed, reputable attorney of good standing, residing in one county to defend him in an action pending in another county, and has put him in possession of the facts constituting the defense, and the attorney has prepared and properly filed an answer: *Held,*upon a judgment being obtained for the negligent failure of the attorney to appear and defend the cause when called for tidal, the defendant may have the judgment set aside for surprise and excusable neglect upon his motion aptly made, the negligence of the attorney not being imputed to the client, and the latter being without fault.

*2.*Same — Where answer stating meritorious defense has been filed, finding to that effect is not necessary to set aside judgment for surprise, etc.

Where a judgment has been obtained against a defendant for failure to appear and defend an action when it was called for trial, a finding of a meritorious defense is not necessary in order to set aside the judgment for surprise and excusable neglect when the defendant has filed an answer in the cause alleging facts which, if believed, would constitute a meritorious defense, it appearing to the appellate court that the allegations of the answer were sufficient.

Stacy, O. J., dissenting; Adams, J., concurs in dissent.

*346Appeal by tbe defendant, E. 0. McLean, from *Glement, J.,*at July Term, 1928, of Ashe.

Tbe plaintiff instituted an action in Asbe County against tbe defendants. Tbe appealing defendant, E. 0. McLean, was at tbe time of tbe commencement of tbe action a citizen of Gaston County. Tbe summons was issued out of tbe Superior Court of Asbe County on 17 June, 1927, and a verified complaint was duly filed on said date. Tbe summons was served on both defendants on 20 June, 1927. When tbe summons and complaint were served tbe appealing defendant employed Mangum & Denny, a firm of reputable lawyers living in Gaston County. He disclosed to bis attorneys all tbe facts constituting bis defense, and tbey prepared an answer, wbicb was duly filed in tbe Superior Court of Asbe County on 1 July, 1927. Tbe cause came on for trial at tbe July Term, 1928. Neither of tbe defendants appeared in person or by attorneys, and upon tbe verdict of tbe jury judgment was entered against the - defendant for tbe sum of $885.75, witb interest and costs. On 21 November, 1928, tbe defendant McLean, after due notice, made a motion before tbe clerk to set aside said judgment on tbe ground of mistake, inadvertence, surprise and excusable neglect as provided by C. S., 600. Tbe clerk overruled tbe motion of tbe defendant and be appealed to tbe judge of tbe Superior Court. Tbe judge found three facts, to wit: (1) That tbe appealing defendant McLean employed tbe firm of Mangum & Denny, attorneys at law, to represent him in tbe trial of tbe cause; (b) that tbe defendant did not employ any local counsel in regular attendance upon tbe Superior Court of Asbe County; (c) that tbe firm of Mangum *&*Denny did not regularly attend tbe Superior Court of Asbe County.

Upon tbe foregoing facts tbe judge refused to set aside tbe judgment, and tbe defendant McLean appealed.

*T. G. Bowie for plaintiff.*

*W. H. Sanders and W. B. Bauguess for defendant, B. G. McLean.*

BbogdeN, J.

Tbe case presents a single proposition of law, to wit: What duty does tbe law impose upon a defendant in a civil action witb reference to tbe preparation and trial of bis cause?

There are a host of decisions in this State upon tbe subject, and many of them are totally irreconcilable. However, it is fairly clear that two imperative duties are imposed upon a defendant in a civil action: First, be must give to tbe litigation such attention “as a man of ordinary prudence usually bestows upon bis important business.” This principle is announced in many cases, of wbicb tbe following are illustrative: *Kerchner v. Baker,*82 N. C., 169; *Pepper v. Clegg,*132 N. C., 312, 43*347S. E., 906; *Jernigan v. Jernigan,*179 N. C., 237, 102 S. E., 310; *Lumber Co. v. Chair Co.,*190 N. C., 437, 130 S. E., 12. Second, tbe defendant must employ counsel.

In *Manning v. R. R.,*122 N. C., 824, 28 S. E., 963, tbis Court said: “Litigation must ordinarily be conducted by means of counsel; and, Fence, if there is neglect of counsel, the client will be held excusable for relying upon the diligence of his counsel, provided he is in no default himself. . . . He must, however, not only pay proper attention to the cause himself, but he must employ counsel who ordinarily practices in the court where the case is pending, or who are at least entitled to practice in said court and engage to go thither.” Another portion of the same opinion declares: “Besides, even if the general counsel of the defendant, to whom the summons was sent, had been counsel regularly authorized and empowered to practice in the courts of this State, it does not appear that he was in the habit of attending regularly the courts of Bertie County, or especially agreed to attend the term of said court in this matter, and in the absence of such proof the defendant has not shown that it has paid proper attention to the case, and that its neglect was excusable, and this burden was on the defendant.”

Apparently this case was the first to intimate that home geography had anything to do with the -efficiency or diligence of counsel in representing clients. Moreover, the *Manning case*involved the employment of an attorney who was a nonresident of North Carolina, and therefore had no right to practice in our courts, and who did not habitually practice therein.

Again in *Bank v. Palmer,*153 N. C., 501, 69 S. E., 507, this Court said: “It has been held by this Court that a party litigant Svho seeks to be excused for laches, on the ground of excusable neglect, must show that the counsel employed is one who regularly practices in the court where the litigation is pending, or at least one who is entitled to practice therein and was especially engaged to go thither and attend to the case.’ ” Citing *Manning v. R. R.*The *Palmer case*also involved the employment of a nonresident attorney.

Up to this point the duty imposed upon a defendant was to employ an attorney who either practiced regularly in the county where the litigation was pending or who was entitled to practice therein and was especially engaged to go thither, but this rule is tremendously expanded in later cases. Thus, in *Jernigan v. Jernigan,*179 N. C., 237, 102 S. E., 310, the Court says: “It further appears that he employed attorneys not residing in Harnett County, where the case was pending, and not practicing in its courts. The learned judge could consider this fact upon the question of negligence.” In the *J ernigan case,*suit was brought in Harnett, and the defendant employed able and reputable counsel at Smithfield in Johnston County, only a few miles away.

*348Again in *Cahoon*v. *Brinkley,*176 N. C., 5, 96 S. E., 650, this Court said: “Where the defendant employs a counsel nonresident in this State, or even counsel in this State who does not reside in the county of trial, or who does not habitually attend that court, the judgment, for want of an answer, will not be set aside, for such neglect is inexcusable.”

It is apparent, therefore, that the home geography rule was not at first contemplated; but, according to these decisions, it is the duty of a defendant, even though he employs reputable and efficient counsel in one county, to also employ local counsel residing in the county where the cause is to be tried. Under this rule, if a defendant relies upon the home-grown product, he is safe from the penalty of negligence; but if he relies upon a reputable attorney, duly authorized to practice in all the courts of North Carolina, but who does not happen to be affected by the local geography of the trial, he must suffer the consequence of his negligent act.

The rule requiring a litigant to employ local counsel was apparently built upon the idea that the counties of the State were foreign jurisdictions with respect to each other, and harks back to a time when transportation facilities and inter-communication in the State were crude and ineffective, thus rendering it practically impossible for a lawyer to attend to business beyond the range of his immediate vicinity. This conception was expressed in *Cogdell v. Barfield,*9 N. C., 332, decided in 1823. In that case the defendant employed a lawyer in Duplin to appear and defend a case in Sampson. The attorney failed to discharge his duty. The Court declared that the defendant was entitled to no relief because he “incurred the risk of eoiinsel’s attendance, who did not practice in the court, while he was told of others that would be in attendance.” This, of course, is a quaint doctrine as it seems, the defendant was penalized for failure to take the advice of volunteers who undertook to recommend good lawyers that could endure the hardship of the journey of a few miles from Duplin to Sampson. Nevertheless, it is quite apparent that the ideas of professional diligence and contacts with the court, obtaining over one hundred years ago, are still invoked to measure the professional responsibility of attorneys in this modern day of changed conditions and changed professional obligations.

The true rule was first expressed in *Griel v. Vernon,*65 N. C., 76. This Court declared: “In this case the party retained an attorney to enter a plea for him; that an attorney should fail to perform an -engagement to do such an act as that, we think may fairly be considered a surprise on the client; and that the omission of the client to examine the records in order to- ascertain that it had been done, was an excusable neglect.”

Again, in *Taylor v. Pope,*106 N. C., 267, 11 S. E., 257, the defendant attended court, but was assured by this attorney that “he would attend *349to tbe case.” Belying upon sucb assurance, be left tbe court and judgment was taken against bim. Tbis Court beld that tbe judgment should have been vacated.

In *Seawell v. Lumber Co.,*172 N. C., 320, 90 S. E., 241, tbe defendant employed counsel in Duplin to take charge of a suit instituted in Eobeson County. Tbe attorney so employed failed to secure counsel in Eobeson County and judgment was entered. Upon motion duly made to set tbe judgment aside upon tbe ground of excusable neglect, tbis Court said: “Tbe distinction between tbe negligence of counsel, while engaged in tbe performance of a professional duty, and tbe negligence of tbe party, is clearly marked, and tbe uniform rule with us is that the negligence of tbe first will not be attributed to tbe client if be, himself, is in no fault; and tbis is true without regard to tbe solvency or insolvency of counsel.” Again, it is said in tbe opinion “that tbe client who has employed a reputable attorney who is entitled to practice in tbe county where tbe action is pending, who is himself not in default, will be relieved.” Applying tbe principles of law thus announced, tbe Court beld that counsel employed in Duplin County was entitled to practice in tbe courts of Eobeson County, and that for sucb reason tbe client was in no default, and was therefore entitled to have tbe judgment Set aside.

Again in *Grandy v. Products Co.,*175 N. C., 511, 95 S. E., 914, tbe defendant employed counsel- in New Hanover to represent bim in a cause instituted in Mecklenburg County. A copy of tbe calendar was mailed to sucb counsel and thrown in tbe waste basket without being read. A judgment was obtained against tbe defendant and was set aside. Tbe Court said: “If, however, tbe negligence of counsel is established, tbis is not sufficient reason for denying relief to the defendant, since it has been beld in numerous cases that tbe negligence of counsel in tbe performance of professional duties will not be attributed to tbe client.” Tbe principle is reiterated in *Helderman v. Mills Co.,*192 N. C., 626, 135 S. E., 627, *Justice Cornwr,*writing for tbe Court, says: “Whether tbe neglect of tbe attorney to file tbe answer was upon tbe facts found, -excusable, is not determinative of defendant’s right to relief upon its motion; defendant having retained an attorney well known to it, for bis high character and excellent professional standing, bad tbe right to assume that be would advise it when and what action was required of it for making its defense. Upon tbe facts found, tbe conclusion that defendant’s negligence was excusable, cannot be beld to be error. Tbe negligence of tbe attorney, upon tbe facts found, even if conceded, will not be imputed to defendant, who was free from blame.”

Tbe law, as set forth, in the foregoing quotations from our decisions, is supported by a host of cases in tbis jurisdiction, which surround tbe principles announced therein as a shining cloud of witnesses. *English*
      *350
      *v. English,*87 N. C., 497; *Ellington v. Wicker,*87 N. C., 14; *Geer v. Reams,*88 N. C., 197; *Gwathney v. Savage,*101 N. C., 103, 7 S. E., 661; *Taylor v. Pope,*106 N. C., 267, 11 S. E., 257; *Gaylord v. Berry,*169 N. C., 733, 86 S. E., 623; *Schiele v. Insurance Co.,*171 N. C., 426, 88 S. E., 764; *Edwards v. Butler,*186 N. C., 200, 119 S. E., 7.

When tbe Supreme Court of North Carolina issues a license to an attorney, he is thereby entitled to practice in all the courts of this State. Furthermore, the very act of issuing the license is a solemn declaration of this tribunal that the person so licensed is possessed of that upright character and degree of learning which merits the confidence of those who commit their business into his hands. Attorneys, by virtue of the fact that they are officers of the Court, ought to be diligent; and if they fail to discharge the duties of employment, they ought to be held to strict accountability for negligence. But the client is not supposed to know the technical steps of a lawsuit any more than the patient the technical treatment for disease. Thus, as a matter of necessity, the client must rely upon his lawyer, and the patient must rely upon his physician. Undoubtedly, it is the duty of the client to furnish to his attorney all the facts with respect to his case, the names and addresses of his witnesses, and to hold himself in readiness at all times to attend the court where his cause is pending, and to do such other things as may be necessary for the prompt and diligent dispatch of business.

In the ease at bar, the client employed reputable, skilled and competent counsel. He confided the facts constituting his defense and thereupon an answer was duly prepared and properly filed. He had no further notice until the judgment was rendered and the door of the courts closed against him. This record does not disclose that the client was guilty of any negligence or inattention unless he was required to employ two lawyers to perform the same duty; that is to say, a lawyer in Gaston and a lawyer in Ashe. This rule requiring a double agency for the performance of a single act, cannot be supported by logic or reason, and does not obtain anywhere else in our entire economic system.

The point is made that the trial judge did not find that the defendant had a meritorious defense. There are decisions to the effect that a failure to make such finding is fatal. There are decisions to the contrary. For instance, in *English v. English,*87 N. C., 497, this Court said: “Nor can we give our assent to the proposition that before setting aside the judgment, it was the judge’s duty to have ascertained as a fact, whether there existed a meritorious defense to the action, since, that would necessitate a trial by the court, of all the issues involved, and be to anticipate the very purposes of the motion. The affidavit of the defendant sets forth facts which establish a prima facie defense, and that is all the law requires.”

*351Indeed it is the duty of the court to state the facts constituting the defense in order that the Supreme Court may determine the merit of the question. *Winborne v. Johnson,*95 N. C., 46; *Vick v. Baker,*122 N. C., 98, 29 S. E., 64; *Gaylord v. Berry,*169 N. C., 733, 86 S. E., 623.

In the *Gaylord case, supra,*the court examined the affidavits filed and found therefrom a meritorious defense, although the trial judge found to the contrary and remanded the case for “fuller findings of fact, with leave to file additional affidavits, if the parties are so advised.”

In those cases in which no answer has been filed the nature of the defense must necessarily be presented by affidavits. In such event it would be necessary for the trial judge to find whether or not there was a meritorious defense. But in cases where the pleadings have been filed an inspection of the pleading itself will disclose to the reviewing court whether a meritorious defense was alleged. This perhaps explains the irreconcilable ruling of the court upon the subject. In support of this view it is perhaps more than significant that the following cases: *Bowie v. Tucker,*197 N. C., 671, 150 S. E., 200; *School v. Peirce,*163 N. C., 424, 79 S. E., 687; *Hardware Co. v. Buhmann,*159 N. C., 511, 75 S. E., 731; *Horton v. McLaurin,*125 N. C., 185, 34 S. E., 269; *Taylor v. Gentry,*192 N. C., 503, 135 S. E., 327; *Albertson v. Terry,*108 N. C., 75, 12 S. E., 892; *Holcomb v. Holcomb,*192 N. C., 504, 135 S. E., 287, were all cases in which no answer had been filed; and in these cases the absence of a finding of meritorious defense has been featured.

In the case at bar an answer was filed in apt time and is here before us. An examination of the answer discloses that facts are alleged, which, if believed, would constitute a meritorious defense.

It is suggested that the trial courts may experience difficulty in following the construction of the law herein declared, but the plain answer is that in order to follow the decisions now existing, it would be necessary to possess the double head of Janus, and such transcendent qualification ought not to be required of trial judges.

It appears that the appealing defendant duly employed well-known and reputable attorneys, disclosing all the facts necessary to his defense, and that an answer was duly prepared and filed in apt time, containing a meritorious defense. It further appears that said attorneys accepted the employment by making an appearance in due time, and that they were entitled to practice in the Superior Court of Ashe County as a matter of right, and that no negligence is disclosed upon the part of the appealing defendant. Therefore, we hold, and so decree that the defendant is entitled to have the judgment complained of set aside.

Reversed.

Stacy, C. J.,

dissenting: This decision, among other things, renders the following eases of doubtful authority, if it does not overrule them: *352
      *Lumber Co. v. Chair Co.,*190 N. C., 437, 130 S. E., 12; *Jernigan v. Jernigan,*179 N. C., 237, 102 S. E., 310; *Cahoon v. Brinkley,*176 N. C., 5, 96 S. E., 650; *Ham v. Person,*173 N. C., 72, 91 S. E., 605; *Allen v. McPherson,*168 N. C., 435, 84 S. E., 766; *Pierce v. Eller,*167 N. C., 672, 83 S. E., 758; *School v. Peirce,*163 N. C., 424, 79 S. E., 687; *McLeod v. Gooch,*162 N. C., 122, 78 S. E., 4; *Hardware Co. v. Buhmann,*159 N. C., 511, 75 S. E., 731; *Bank v. Palmer,*153 N. C., 501, 69 S. E., 507; *Osborn v. Leach,*133 N. C., 428, 47 S. E., 811; *Pepper v. Clegg,*132 N. C., 312, 43 S. E., 906; *Norton v. McLaurin,*125 N. C., 185, 34 S. E., 269; *Manning v. R. R.,*122 N. C., 824, 28 S. E., 963; *Vick v. Baker,*122 N. C., 98, 29 S. E., 64; *Roberts v. Alman,*106 N. C., 391, 11 S. E., 424; *Bradford v. Coit,*77 N. C., 72; *Sluder v. Rollins,*76 N. C., 271; *Waddell v. Wood,*64 N. C., 624; *Cogdell v. Barfield,*9 N. C., 332.

Tbe ancient maxim, *“uigilantibus et non dormientibus subvenit lex,”*bas frequently been applied in cases of tbis kind. *Lumber Co. v. Chair Co., supra; Jernigan v. Jernigan, supra; Battle v. Mercer,*187 N. C., 437, 122 S. E., 4; *S. c.,*188 N. C., 116, 123 S. E., 258. “It early grew into one of tbe cardinal maxims of tbe law, tbat it will assist those wbo are diligent and not those who sleep on their rights, and tbe law will not take from him wbo bas been thus diligent, what be bas secured thereby, and turn it over to him wbo bas lost it by bis inaction”— *Walker, J.,*in *School v. Peirce, supra.*

“It bas been held repeatedly by tbis Court tbat persons of sound mind wbo are served with process'must be active and diligent, and tbat if they fail to give litigation tbe attention which a man of ordinary prudence usually gives to bis important business, they can have no relief under tbe *statute”*— Allen, *J.,*in *Pierce v. Eller, supra.*

“Tbe least tbat can be expected of a person having a suit in court is tbat be shall give it tbat amount of attention which a man of ordinary prudence usually gives to bis important *business”*— Bodman, *J.,*in *Sluder v. Rollins, supra.*

“When a man .has a case in court tbe best thing be can do is to attend to *it.”-*— -Qlark, *G. J.,*in *Pepper v. Clegg, supra.*

Tbe decisions in *Lumber Co. v. Chair Co., supra,*and *Manning v. R. R., supra,*do not approve of “attending to legal proceedings at long range.”

Furthermore, there is no finding of a meritorious defense, and no request tbat such a finding be made. -This is fatal to appellant’s ease. *Bowie v. Tucker,*197 N. C., 671, 150 S. E., 200; *School v. Peirce, supra; McLeod v. Gooch, supra; Hardware Co. v. Buhmann, supra; Norton v. McLaurin, supra; Taylor v. Gentry,*192 N. C., 503, 135 S. E., 327; *Albertson v. Terry,*108 N. C., 75, 12 S. E., 892. *“We*do not consider *353affidavits for tbe purpose of finding facts ourselves in motions of this sort.” *Gardiner v. May,*172 N. C., 192, 89 S. E., 955; *Holcomb v. Holcomb,*192 N. C., 504, 135 S. E., 287. Indeed, in the instant case, there being no dispute as to the facts found, and no request to find additional facts, the affidavits of the parties have no proper place in the case on appeal. *Osborn v. Leach, supra.*The judge’s findings on the present record are conclusive and irreviewable. *Allen v. McPherson, supra; Crye v. Stoltz,*193 N. C., 802, 138 S. E., 167. And they are binding on us. *Turner v. Grain Co.,*190 N. C., 331, 129 S. E., 725; *Gaster v. Thomas,*188 N. C., 346, 124 S. E., 609.

The present case goes a bowshot farther than anything in the books, and the trial courts may have some difficulty in following it. The plaintiff did all that the law has heretofore required of him to obtain a valid judgment against the defendants. And even upon the next trial, if the defendants should again fail to appear, either in person or by attorney, the plaintiff may well inquire: "What shall I do to insure a valid proceeding ?

Adams, I., concurs in this opinion.