Gwathney v. . Savage , 101 N.C. 103 ( 1888 )

The defendant Garrett had employed an attorney practicing in the courts of Halifax; he had furnished his said attorney with the facts material for his answer, and he had reason to suppose that, with the facts before him, his attorney would not neglect to put in an answer and protect his interest. The complaint was verified, and no verified answer was put in. This was neglect — whose neglect was it? Was it the neglect of the defendant, (107) and if so, was it excusable?

The plaintiff says that it was the duty of the defendant to have been at court, and that it was his neglect, and inexcusable. The defendant lived in a distant part of the State; he had employed an attorney, duly licensed to practice in the courts; furnished him with all the data necessary to protect his rights and interests in the action, and he was presumed not to know himself what answer to make or how to make it; but he had a right to assume that his attorney would not neglect to file his answer and protect his interests, and to inform him if it was necessary to make any affidavit verifying the same.

The distinction between the neglect of parties to an action and the neglect of counsel is recognized in our courts, and except in those cases in which there is a neglect or failure of counsel to do those things which properly pertain to clients and not to counsel, and in which the attorney is made to act as the agent of the client, to perform some act which should be attended to by him, the client is held to be excusable for the neglect of the attorney to do those things which the duty of his office of attorney requires. It was the duty of the attorney to file the defendant's answer; if it required verification, as it did, it was his duty to inform his client of the fact.

The client is not presumed to know what is necessary.

"When 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." Whitson v. R. R., 95 N.C. 385.

The distinction between neglect of counsel taken in Griel v. Vernon,65 N.C. 76, has been followed by a number of cases since, and may be regarded as settled. Ellington v. Wicker, 87 N.C. 14, and the cases there cited.

In the case before us the neglect was that of the counsel, and (108) we concur in the ruling of his Honor below, that it was excusable neglect on the part of the defendant.

The counsel for the appellee Garrett moved to dismiss the appeal, "upon the ground that the undertaking on appeal was not filed in the time prescribed by law."

It appeared from the record that the motion to set aside the judgment was heard by consent at the April Term of Northampton court. It also appeared from the record that the case on appeal was filed on 25 May, 1888, and that the appeal bond was filed on the same day. The counsel for appellant filed an affidavit, in which he makes oath, "that the facts were found and the amount of the appeal bond fixed by the judge on 25 May, 1888, and thereafter, on the same day, the bond was executed and filed."

By consent, the motion was heard at Northampton court. It does not appear from the record on what day the judgment was filed, but the case on appeal was filed on 25 May, and the appeal bond filed on the same day, and, as we find upon the affidavit of Mr. Hill, on the same day the facts were found and the amount of the bond was fixed by the judge. The motion was heard and the judgment rendered out of term, by consent, and the bond was filed within ten days after notice thereof. The motion to dismiss cannot be allowed.

Affirmed.

Cited: Phifer v. Ins. Co., 123 N.C. 409; Koch v. Porter, 129 N.C. 136;Pepper v. Clegg, 132 N.C. 316; Schiele v. Ins. Co., 171 N.C. 431;Grandy v. Products Co., 175 N.C. 513.

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