Brown v. Hale

130 S.E.2d 868 (1963) 259 N.C. 480

Rufus Macon BROWN
v.
Edwin Hoyle HALE, George Kelley Johnson, and Joseph G. Banks, t/a Banks Used Cars.

No. 601.

Supreme Court of North Carolina.

May 22, 1963.

Frazier & Frazier, H. Vernon Hart, Greensboro, W. P. Pearce, Franklinton, for plaintiff-appellant.

Holding, Harris, Poe & Cheshire, Raleigh, Smith, Moore, Smith, Schell & Hunter, Greensboro, for defendants-appellees.

DENNY, Chief Justice.

The determinative question before us is whether or not the neglect of defendants' attorneys in failing to file answer within the time allowed, in light of the facts and circumstances disclosed by the record, is imputable to these defendants.

What duty does the law impose upon a defendant in a civil action with respect to filing answer or other pleading?

The decisions on the subject now before us are not entirely satisfactory with respect to their consistency. In fact, many of them are irreconcilable. Sutherland v. McLean, 199 N.C. 345, 154 S.E. 662. However, the general rule seems to be that where a defendant employs reputable counsel and is guilty of no neglect himself, and the attorney fails to appear and answer, the law will excuse the defendant and afford relief. Stallings v. Spruill, 176 N.C. 121, 96 S.E. 890; Gunter v. Dowdy, 224 N.C. 522, 31 S.E.2d 524; Rierson v. York, 227 N.C. 575, 42 S.E.2d 902; Moore v. Deal, 239 N.C. 224, 79 S.E.2d 507.

In the case of Gunter v. Dowdy, supra, the Court said: "Since the failure to file an answer was due to the excusable neglect of the attorney employed in apt time by the defendants, and since the defendants made such attorney aware of their defense to the action, any failure or neglect of the attorney to file the answer could not be attributable to the defendants. Schiele v. North State Fire Ins. Co., 171 N.C. 426, 88 S.E. 764; English v. English, 87 N.C. 497; Norton v. McLaurin, 125 N.C. 185, 34 S.E. 269; Mann v. Hall, 163 N.C. 50, 79 S.E. 437."

In Rierson v. York, supra, this Court said: "In considering the propriety of the order entered on the hearing of defendant's motion, we must remember that the excusability of the neglect on which relief is granted is that of the litigant, not that of the attorney. The neglect of the attorney, although inexcusable, may still be cause for relief. Meece v. Commercial Credit Co., 201 N.C. 139, 159 S.E. 17; Abbitt v. Gregory, 195 N.C. 203, 141 S.E. 587; Ice Mfg. Co. v. Raleigh & A. Air-line R. Co., 125 N.C. 17, 24, 34 S.E. 100; Stallings v. Spruill, 176 N.C. 121, 96 S.E. 890."

In Moore v. Deal, supra, Parker, J., speaking for the Court, said: "We held as far back as 1871 in Griel v. Vernon, 65 N.C. 76, that an attorney's neglect to file a plea is a surprise on the client whose failure to examine the record to ascertain that it has been filed is an excusable neglect. * * *

"When an attorney is licensed to practice in a state it is a solemn declaration that he is possessed of character and sufficient legal learning to justify a person to employ him as a lawyer. He is an officer of the court which should hold him to strict accountability for his negligence or misdeeds, if he commits such. The client is not supposed to know the technical steps of a lawsuit. ``Where he employs counsel and communicates the merits of his case to such counsel, and the counsel is negligent, it is excusable on the part of the client, who may reasonably rely upon the counsel's doing what may be necessary on his behalf.' * * *"

The cases of Stephens v. Childers, 236 N.C. 348, 72 S.E.2d 849; Greitzer v. Eastham, 254 N.C. 752, 119 S.E.2d 884; Jones v. Statesville Ice & Fuel Co., 259 N.C. 206, 130 S.E.2d 324, and similar cases, where the rule has been laid down to the effect, "that ordinarily the inexcusable neglect of a responsible agent will be imputed to the principal in a proceeding to set aside a judgment by default," are factually distinguishable from those in the instant case. No counsel was employed in any one of the above cited cases until after judgment by default and inquiry had been obtained.

It clearly appears in the instant case that competent counsel was employed in apt time and that the defendants through their responsible agent, their insurance carrier, had furnished all the information necessary for counsel to file answer and set up their defenses to the action. Nothing more was required of them. Moore v. Deal, supra; Jones v. Ice & Fuel Co., supra.

We hold that the defendants had the right to rely on the counsel selected by their insurance carrier to file answer within the time allowed and to represent them in the defense of the action. Moreover, the essential findings of fact upon which the judgment below was based, in our opinion, were supported by competent evidence. The judgment of the court below will be upheld.

Affirmed.