Perkins v. Sykes

63 S.E.2d 133 (1951) 233 N.C. 147

PERKINS
v.
SYKES.

No. 747.

Supreme Court of North Carolina.

February 2, 1951.

A.H. Graham, Hillsboro, L.J. Phipps, Chapel Hill, for plaintiff appellee.

J. Grover Lee, R.M. Gantt, Durham, for defendant appellant.

WINBORNE, Justice.

The decisions of this Court uniformly hold that a party, moving in apt time and under the provisions of G.S. § 1-220 to set aside a judgment taken against him, on the ground of surprise or excusable neglect, not only must show surprise or excusable neglect, but also must make it appear that he has a meritorious defense to plaintiff's cause of action. Dunn v. Jones, 195 N.C. 354, 142 S.E. 320; Hooks v. Neighbors, 211 N.C. 382, 190 S.E. 236; Johnson v. Sidbury, 225 N.C. 208, 34 S.E.2d 67; Craver v. Spaugh, 226 N.C. 450, 38 S.E.2d 525; Whitaker v. Raines, 226 N.C. 526, 39 S.E. 266; Van Hanford v. McSwain, 230 N.C. 229, 53 S.E.2d 84, and numerous other cases.

The findings of fact made by the court in respect to the elements so required, surprise or excusable neglect and meritorious defense, when supported by evidence, are conclusive on appeal, and binding on this Court. Craver v. Spaugh, supra. Van Hanford v. McSwain, supra.

But facts found under misapprehension of the law are not binding on this Court and will be set aside, and the cause remanded to the end that the evidence should be considered in its true legal light. McGill v. Town of Lumberton, 215 N.C. 752, 3 S.E.2d 324. See also Van Hanford v. McSwain, supra, where decisions to like effect are cited.

Indeed, in Calaway v. Harris, 229 N.C. 117, 47 S.E.2d 796, 797, the principle has been aptly re-stated in this manner: "Where rulings are made under a misapprehension of the law or the facts, the practice is to vacate such rulings and remand the cause for further proceedings as to justice appertains and the rights of the parties may require", citing McGill v. Lumberton, supra. And this principle is applied in Van Hanford v. McSwain, supra.

While on the present appeal defendant, appellant, bases an assignment of error upon a general exception to the findings of fact on which the challenged judgment rests, "a shot at the covey", so to speak, it fails to hit any particular fact. Hence it is not well taken, and cannot be considered. See Town of Burnsville v. Boone, 231 N.C. 577, 58 S.E.2d 351.

Moreover, the only assignment of error properly presented for consideration is founded on an exception to the judgment. Such assignment, as recently re-stated in Simmons v. Lee, 230 N.C. 216, 53 S.E.2d 79, and numerous cases there cited, raises only the questions (1) as to whether the facts as found by the judge are sufficient to support the judgment, and (2) as to whether error in matters of law appears upon the face of the record. See also Van Hanford v. McSwain, supra.

In this connection it is apparent, from a reading of the pleadings, the judgment on former trial, and the opinion of the Supreme Court on the former appeal in connection with defendant's motion to set aside the judgment of 16 May 1950, that the facts found by the court in respect to the essential elements, surprise or excusable neglect, and meritorious defense, were made under a misapprehension of the law and the facts.

First, as to the withdrawal of defendant's attorneys: Appropriate treatment of the subject is found in these decisions of this Court: Gosnell v. Hilliard, 205 N.C. 297, 171 S.E. 52, 54, and in Roediger v. Sapos, 217 N.C. 95, 6 S.E.2d 801, 803. In the Gosnell case, Adams, J., writing for the Court, in pertinent part, had this to say: "An attorney who is retained generally to conduct a legal proceeding enters into an entire contract to follow the proceeding to its termination, and hence cannot abandon the service of his client without sufficient cause and without giving proper notice of his purpose * *. Weeks states the rule as follows: ``An attorney who undertakes the conduct of an action impliedly stipulates to carry it to its termination and is not at liberty to abandon it without reasonable cause and reasonable notice.' * * *

"The dual relation sustained by an attorney imposes upon him a dual obligation —the one to his client, the other to the court. He is an officer of the court * * * and can withdraw from a pending action in which he is retained only by leave of the court * * * and only after having given reasonable notice to his client. This court has held that if an attorney wishes to withdraw from a case in which he has been employed he must inform his client of his intention, and that he cannot terminate the contractual relation between them without imparting such information. * * * No rule of universal application has been formulated with respect to facts or conditions which would justify an attorney in withdrawing from pending litigation; but it is generally held that the client's failure to pay or to secure the payment of proper fees upon reasonable demand will justify the attorney in refusing to proceed with the case * * In Spector v. Greenstein, 85 Pa.Super. 177, it was held that while an attorney may sever his relation with a client who refuses to pay a fee, his withdrawal should not be allowed in the absence of the client, without notice to him, and without his having an opportunity to be heard. * * The decisive question is whether the defendant was entitled to specific notice that her attorney would not represent her at the trial. It is held generally that she was entitled to such notice * * * She was entitled either to specific notice in advance that her counsel would retire from the case or, after his withdrawal, that he had retired, and to a reasonable opportunity to obtain other professional assistance."

To like effect is the case of Roediger v. Sapos, supra. There this Court, in opinion by Barnhill, J., states: "When defendant's counsel undertook to withdraw from the case at the moment the cause was ordered to trial the Court below should have denied him the right to do so. If counsel insisted upon withdrawing or declined to participate in the trial in defense of his client's rights, he being an officer of the Court, the Judge had ample authority to require him to proceed in good faith. The conduct of the attorney in withdrawing from the case under the circumstances disclosed by this record, inadvertently participated in by the Judge in allowing such conduct, if the defendant had no notice of such purpose, constitutes ``surprise' under C.S. § 600", citing cases.

Applying these principles to the case in hand, it appears on the face of the record that the attorneys of record for defendant appeared generally in the conduct of his defense to the action in both Superior and Supreme courts. And there is no showing or finding, in connection with their withdrawal from the case, or otherwise, that they had given defendant notice that they, or either of them, intended to withdraw from the case. Under such circumstances, their request to be permitted to retire from the case should have been denied. Their conduct in withdrawing under the circumstances disclosed by the record, inadvertently participated in by the judge in allowing such conduct, constitutes "surprise" under G.S. § 1-220, formerly C.S. § 600.

Second: As to the holding that "no evidence of meritorious defense has been shown", patently this ruling was made under misapprehension (1) as to the averments in defendant's answer denying the allegations of plaintiff's complaint, (2) of the judgment on former trial, and (3) of opinion of the Supreme Court, all of which appear upon the face of the record. See Van Hanford v. McSwain, supra. Cagle v. Williamson, 200 N.C. 727, 158 S.E. 391.

For reasons pointed out, the findings of fact and rulings thereon made by the judge below will be and are set aside, and the cause is remanded for further proceedings as to justice appertains and the rights of the parties may require. Van Hanford v. McSwain, supra.

Error and remanded.