Virginian-pilot. (Norfolk, Va.) 1898-1911, 1899-12-20
NORTON ". NI'LAURIN.

Supreme Court of North Carolina.
November il, 1899.
NEGLIGENCE OF COUNSEL IS NOT
ENCUSABL.E NEGLECT, FOR
WHICH a JUDGMENT WILL BE
SET ASIDE, WHEN THE CLIENT
TOOK NO INTEREST IN TIE
CASE. DID NOT ATTEND COURT,
GAVE NO INSTRUCTIONS TO
COUNSEL. NOR ASKED ANY
FROM HIM.
WHAT NEGLIGENCE OF DEFEN-
DANT NOT EXCUSABLE.
This was motion to set aside 1udg-
ment for eXcusable neglect under Code
section PA. The lower court set aside
the Judgment and plaintiff appealed
The facts appear from the opinion of
the court.
The court says:
In this case the judge found that the
summons was duly served on defen-
dants more than ten days before court.
and verified complaint filed within
the first three days of the first term;
that no order was made extending time
10 lille answer and bond in this case
nor any general order of that kind, but
defendants attorney had reason to be-
lleVe general order had been made at
that term. giving time TO file pleadings;
that at the second term of court, no
attorney having yet appeared or enter
ed his appearance for defendants, no
answer or demurrer being filed, nor any
BOND filed as required by Code, section
23f Cthis being an action of ejectment),
Judgment was taken in open court by
default final for the land, and by de-
fault and inquiry as to the damages,
which judgment was regularly taken
md hn daf6
sci being then present in court, and, eff
paying attention, would have heard the
notion" that the next day a general
order was made, allowing thirty days
to file pleadings, but no order was made
to extend time for filing defense bonds.
1t is further found as n fact that the
defendants attorney is solvent. Upon
these findings of fact the court adj
Judged there was eXcusable negligence,
and. in his discretion, set the Judgment
aside. The latter action would have
been irrevicwable IL the finding of law
had been correct, that there was ex-
cusablc neglect. But the negligence
was not excusable. ID In the late
case of Wick V. Baker. it is said:
1T does not appear, and it is not
averred, that the defendants filed the
bond required by section 237 of the
Code. or were excused from filing it:
and the Judgment by default was au-
thorized by Code, section 500. even if
there had been eXcusable neglect in
failing to file answer"
This case is stronger than either OF
the two cases just cited. for it appears
aflirmatlvely that the defense bond was
not fled even at the second term, and
that no order. either general or special
was made to extend time for filing it
This bond (Code, section 237) requires
the defendant, in actions to recover real
estate. to file before he can answer or
dcmur. The failure to file this bond
was the negligence Of the defendants
themselves. and no excuse wha tever is
shown. relieving them from the jutlg-
mcnt authorized by Code, section 900
upon their failure to file it. When n
man has business in court It Is his
duty to attend to 1t, and at the proper
time Resides. (2) the negligence of
counsel will not excuse If the defendant
himself has been ncglectful and 1t is
not shown that defendants took any
interest in the case. attended court,
gave any instructions to their attor-
ney, or asked any from him. The en-
ployment of counsel did not relieve
them OF all attention to the case. 1t
was still their duty to look after the
matter. and give the case at least such
attention as man of ordinary pru-
dence usually gives to his important
business
Further. 1t is not even found by the
court nor was he asked to find, that
the defendants had a meritorious de-
tense. should the Judgment be set aside
Reversed.
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