Opinion
(September Term, 1895.)
Motion to Set Aside Judgment for Excusable Neglect — Inexcusable Negligence.
Where, on a motion to set aside a judgment for excusable neglect, under section 274 of The Code, it appeared that defendant was present at the August Term of court following the January Term to which he had been summoned, and then knew that the attorney whom he had employed had died; that he filed no answer; that the case was continued to the following January Term and was published in the calendar of cases for a month in two weekly newspapers, and that defendant lived on the railroad 19 miles from the courthouse, and that judgment was taken by default, no other attorney having been employed or answer filed: Held, that the negligence of defendant was inexcusable and the judgment will not be set aside.
MOTION by T. A. Fowler to set aside a judgment rendered at January Term, 1895, of UNION, heard before Timberlake, J., upon affidavits alleging excusable neglect, etc. His Honor refused the motion, and defendant appealed. The facts appear in the opinion of Chief Justice Faircloth.
F. I. Osborne for plaintiff.
H. B. Adams and MacRae Day for defendant.
This is a motion to set aside a judgment for excusable neglect, under The Code, section 274.
Facts: The summons was served and returned to January Term, 1894, when the defendant Fowler employed an attorney to attend to the case. The attorney died on 18 March, 1894, having failed to enter an appearance. At August Term, 1894, the defendant was present and knew his attorney was dead, but employed no other attorney. (483) One month before January Term, 1895, the case was put on the calendar and was set for trial on 4 January, 1895, and the calendar was published in two weekly newspapers at Monroe for one month. The defendant lived 19 miles from the courthouse, directly on the railroad running daily trains. At January Term, 1895, a judgment was rendered, the defendant not attending and having employed no attorney. On 13 August, 1895, the defendant filed an affidavit and made a motion to have the judgment set aside.
This was a plain case of inexcusable negligence. Kivett v. Wynne, 89 N.C. 39. The numerous decisions upon inexcusable negligence under this section are found in Clark's Code, pp. 231, 232, 233, 234.
Affirmed.
Cited: Cahoon v. Brinkley, 176 N.C. 8.
(484)