Vick v. . Baker , 122 N.C. 98 ( 1898 )

The summons was served in December, 1888, and a verified complaint filed in March, 1889. At Spring Term, 1892, leave was granted to the defendants to reinstate their answer in 60 days. At August Term, 1893, no answer or demurrer having been filed, judgment by default final was taken for the recovery of the realty, no damages being asked. The defendants moved at December Term, 1893, to set aside this judgment on the ground of excusable neglect, alleging that their counsel drew up the answer and mailed it to them, but, having changed their postoffice, the latter did not reach them until eleven months after it was mailed. The judge did not find the facts specifically as he should have done. Winborne v. Johnson, 95 N.C. 46; Weil v.Woodard, 104 N.C. 94. But, upon the defendant's own showing, there was inexcusable neglect. The employment of counsel did not relieve them of all attention to the case. Knowing that they had only 10 days in which to file the answer, when that time was about to expire it was their duty to look after the matter and give the case "such attention as a man of ordinary prudence usually gives to his (100) important business." Roberts v. Allman, 106 N.C. 391; Whitson v.R. R., 95 N.C. 385; Henry v. Clayton, 85 N.C. 371. It would seem that the defendants did not change their residence, but merely their postoffice; but, however that may be, it is not shown that they notified counsel of the change of postoffice, nor that they inquired at the former postoffice for letters from counsel. Besides, though failing to receive the substituted answer in the 60 days, they neither went to see their counsel nor even wrote him till this judgment was taken, eleven months after the time limited for filing answer had expired. "Such excuses are too thin and bare to hide" their fault. There was error in holding that there was excusable negligence. The neglect being not excusable, the Court was not authorized to set the judgment aside. Stith v. Jones,119 N.C. 428; Manning v. R. R., at this term.

Further, it does not appear, and 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 authorized by The Code, section 390 (Jones v. Best, 121 N.C. 154), even if there had been excusable neglect in failing to file the answer.

The verified complaint, however, was for an undivided half interest in the premises, and the judgment should have been that the plaintiff be let into possession as tenant in common with the defendants, and not for the recovery of the whole tract. The judgment should be reformed below to conform to the complaint, but the order setting it aside altogether must be

Reversed.

Cited: Norton v. McLaurin, 125 N.C. 189; Coch v. Porter, 129 N.C. 137;Pepper v. Clegg, 132 N.C. 316; Osborn v. Leach, 133 N.C. 431;Patrick v. Dunn, 162 N.C. 23; Pierce v. Eller, 167 N.C. 675.

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