Meir v. Walton , 2 N.C. App. 578 ( 1968 )

163 S.E.2d 403 (1968) 2 N.C. App. 578

Ezra MEIR and wife, Violet S. Meir
v.
Russell C. WALTON, Jr., and wife, Margie G. Walton.

No. 6810SC379.

Court of Appeals of North Carolina.

October 16, 1968. Certiorari Denied November 26, 1968.

Crisp, Twiggs & Wells, by L. Bruce McDaniel, Raleigh for defendant appellants.

Manning, Fulton & Skinner, by Jack P. Gulley, Raleigh, for plaintiff appellees.

MORRIS, Judge.

Defendants contend that the court committed error in three respects: (1) in finding as a fact and concluding as a matter of law that defendants failed to show surprise or excusable neglect in their failure to file an answer, (2) in finding as a fact and concluding as a matter of law that defendants failed to show any meritorious defense to plaintiffs' cause of action, and (3) in finding as a fact that defendants retained the proposed agreement establishing a boundary line for approximately one month before raising, for the first time, the objection that the survey had not been completed within 60 days.

G.S. § 1-220 provides that, at any time within one year after notice thereof, the judge shall, upon such terms as may be just, relieve a party from a judgment taken against him through his mistake, inadvertence, surprise, or excusable neglect.

In order to have a judgment set aside under the statute, the movant must show excusable neglect. 5 Strong, N.C. Index 2d, Judgments, § 24; Whitaker v. Raines, 226 N.C. 526, 39 S.E.2d 266.

Defendants contend that they turned the matter over to an attorney and thereafter relied on him to do whatever needed to be done to protect them, asserting that the neglect of the attorney is not chargeable to them.

Finding of fact No. 11 reads as follows: "That the defendant Russell C. Walton, Jr., did not contact or have any communications with Eugene Smith, Esquire, between the 13th day of March, 1968, and the time that he received a copy of the judgment by default and inquiry." Defendants do not except to this finding of fact, and it is amply supported by the evidence.

We think this case is controlled by the principles enunciated in Jones v. Statesville Ice & Fuel Co., 259 N.C. 206, 209, 130 S.E.2d 324, where the Court, speaking through Denny, C. J., said:

"It is generally held under the above statute that ``(p)arties who have been duly served with summons are required to give their defense that attention which a man of ordinary prudence usually gives his important business, and failure to do so is not excusable.' Strong, North Carolina Index, Judgments, section 22; Whitley v. Caddell, 236 N.C. 516, 73 S.E.2d 162; Pate v. R. L. Pittman Hospital, Inc., 234 N.C. 637, 68 S.E.2d 288; Whitaker v. Raines, 226 N.C. 526, 39 S.E.2d 266; Johnson v. Sidbury, 225 N.C. 208, 34 S.E.2d 67.

Where a defendant engages an attorney and thereafter diligently confers with the attorney and generally tries to keep informed as to the proceedings, the negligence of the attorney will not be imputed to the defendant. If, however, the defendant turns a legal matter over to an attorney upon the latter's assurance that he will handle the matter, and then the defendant does nothing further about it, such neglect will be inexcusable. Moore v. Deal, 239 N.C. 224, 79 S.E.2d 507; Pepper v. Clegg, 132 N.C. 312, 43 S.E. 906."

In Moore v. Deal, 239 N.C. 224, 79 S.E.2d 507, the Court set out the general principles of law established by its decisions applicable where a litigant relies on neglect of counsel to set aside a judgment by default. There the Court said that "the mere employment of counsel is not enough. Hyde County Land & Lumber Co. v. Thomasville Chair Co., 190 N.C. 437, 130 S.E. 12. The client may not abandon his case on employment of counsel, and when he has a case in court he must attend to it. Roberts v. Allman, 106 N.C. 391, 11 S.E. 424; Pepper v. Clegg, 132 N.C. 312, 43 S.E. 906."

In our opinion, when defendant Russell C. Walton, Jr., turned the matter over to Mr. Smith and thereafter made no inquiry as to whether anything had been done, the neglect of the attorney is imputable to him, and he has shown no excusable neglect.

In addition, the motion to set aside the judgment by default and inquiry was denied in the court's discretion. His decision will be upheld in the absence of abuse of discretion. Jones v. Statesville Ice & Fuel Co., supra. We find no abuse of discretion.

In the absence of sufficient showing of excusable neglect, the question of meritorious defense becomes immaterial. Stephens v. Childers, 236 N.C. 348, 72 S.E.2d 849, and cases there cited. We, therefore, do not discuss defendants' remaining assignments of error.

Affirmed.

MALLARD, C. J., and CAMPBELL, J., concur.