Skinner v. . Terry , 107 N.C. 103 ( 1890 )

The statutory provision (The Code, sec. 274) invoked by the defendant provides that "The judge. . . may, also, in his discretion, and upon such terms as may be just, at any time within one year after notice thereof, relieve a party from a judgment, order, or other proceeding taken against him through his mistake, inadvertence, surprise, or excusable neglect," etc. This implies not simply any, but reasonable, mistake, inadvertence, or excusable neglect as to, or surprise occasioned by, some fact or something that has not been done, of which the complaining party ought to have knowledge, and which, if he had had such knowledge, might have prevented the judgment, order, or other proceeding of which he complains. And such judgment, order, or other proceeding must have been given or taken against him through such mistake, inadvertence, surprise, or excusable neglect. The statutory provision does not extend to mistakes as to the law applicable, or as to what the complaining party might, or ought, or ought not to do in the course of the trial, or as to what steps he ought to take with a view to have errors of the court corrected. It does not imply that the court may grant a new trial or set aside a judgment for errors of law (107) of the court, or upon the ground that the party was ignorant of the law or his rights, and as to the methods and means whereby he might assert or enforce them. He may reasonably be misled or surprised by matters of fact, and on that account be excused and relieved from the judgment against him, but errors of the court must be corrected by itself, in the appropriate way and at the proper time, or by the court of errors.

The judgment of which the defendant complains was not given against him through his mistake, inadvertence, surprise, or excusable neglect as to a fact or matters of fact. His mistake was as to what steps he ought to have taken to have the alleged errors of the court corrected. The court held that his demurrer was frivolous, and he excepted. He then requested the court to allow him to file an answer, and thus make defense. The court held that it had not power to allow him to file an answer, and he again excepted, and appealed. This was his proper course, but he abandoned his appeal and thus lost his opportunity to have the errors assigned corrected. That he thus improvidently lost his remedy, through mistake or ignorance of the law, is no reason why the judgment should be set aside. The court, therefore, properly denied the motion upon the grounds specially assigned.

We think, however, that the court should have granted the motion so far as to modify the judgment and make the same a judgment by default and inquiry, as allowed by the statute (The Code, sec. 386). It was clearly irregular, in that it was final. The plaintiffs' cause of action alleged did not warrant such judgment. They alleged in their complaint simply that the defendant was indebted to them "in the sum of $1,000 for services rendered upon his retainers" in the case specified. They did not allege and set "forth one or more causes of action, each (108) consisting of the breach of an express or implied contract to pay, absolutely or upon a contingency, a sum or sums of money fixed by the terms of the contract, or capable of being ascertained therefrom by computation," or that the defendant had agreed or promised to pay them the sum specified, or any particular sum of money. They must have done so to entitle them to a judgment by default final. The Code, secs. 385, 386; Witt v. Long, 93 N.C. 388; Hartman v. Farris, 95 N.C. 177. That the defendant's demurrer was adjudged to be frivolous (Moore v.Hobbs, 79 N.C. 535) could not help the plaintiffs and entitle them to judgment by default final. The statute (The Code, sec. 388) does not provide that such adjudication shall have such effect. It simply puts the demurrer out of the way and leaves the party prejudiced by it to obtain his judgment, as if it had not been filed. Regularly, the plaintiff or party prejudiced thereby should apply to the court at the return term to have the demurrer or other pleading adjudged frivolous, but if he fails to do so then, and does so successfully afterwards, he would be in the like case as if he had failed to take judgment by default and inquiry when he might have done so at the return term and failed to do so.

Such irregularity of the judgment was not assigned specifically as one of the grounds of the motion, but the real purpose of the latter was to have the judgment in question set aside for any proper cause. The motion was made in the action, and it embraced the whole record within its scope, so that the court could see, and ought to have seen, the irregularity and granted the defendant such relief as the nature of his motion would allow and he appeared to be entitled to have. there was no substantial reason why such relief should not be granted. It would be circuitous, dilatory, and serve no useful or just purpose to deny the motion upon the particular grounds assigned by the mover, and leave him to make another motion for the same purpose, simply assigning in its support a ground not specified, but which plainly appeared in (109) the record at the hearing of the first motion. The law does not encourage unnecessary circuity of method, but, on the contrary, the court will settle and administer the right in the action promptly, without regard to mere forms. Moore v. Nowell, 94 N.C. 265; Patrickv. R. R., 93 N.C. 422; Harris v. Sneeden, 104 N.C. 369.

It was objected in this Court, on the argument, that the motion was made in vacation time, and heard in a county other than that in whose court the judgment was given. This objection would have force but for the fact that it sufficiently appears by the record that the plaintiff — the parties — consented to allow it to be thus made and heard. It appears that the plaintiffs accepted service of notice of the application; that the hearing was continued, by consent, from day to day, and that the parties — both the plaintiffs and defendant — were represented by counsel, who argued the motion at length at the hearing, and no such objection was made — at all events, none appears in the record. the reasonable and strong implication is that the parties consented to allow the motion to be made and heard in vacation and at the place specified. By consent, this might be done. Coates v. Wilkes, 94 N.C. 174; Bynum v. Powe,97 N.C. 374; McNeill v. Hodges, 99 N.C. 248; Gatewood v.Leak, ib., 363.

Reversed.

Cited: Williams v. R. R., 110 N.C. 474; Johnson v. Loftin, 111 N.C. 323;Fertilizer Co. v. Taylor, 112 N.C. 145; Crabtree v. Scheelky, 119 N.C. 58;Ledbetter v. Pinner, 120 N.C. 457; Cowles v. Cowles, 121 N.C. 279;Phifer v. Ins. Co., 123 N.C. 409; Collins v. Pettitt, 124 N.C. 736;Cantwell v. Herring, 127 N.C. 83; Scott v. Life Assn., 137 N.C. 524,527; Mann v. Hall, 163 N.C. 51, 53.

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