See Bayer ?. Raleigh & Augusta Air Line R.R. Co., 125 N.C. 17, 20, 34 S.E. 100 (1899); see also id. at 25, 34 S.E. 100 ("It seems to us ... that, to refuse the writ in this case, ‘the defendant would be undone.’ "). The same is true of the State’s petition here.
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 Co. v. Railroad, 125 N.C. 17, 24, 34 S.E. 100; Stallings v. Spruill, 176 N.C. 121, 96 S.E. 890."
This Court reversed, saying: ". . . (O)ne of . . . attorneys . . . is found to be `amply solvent.' And it has been held by this Court that where this is the case the Court will not set aside the judgment otherwise regular." The more liberal views of Chancellor Kent gained approval in Gardiner v. May, 172 N.C. 192, 89 S.E. 955 (1916), and Ice Manufacturing Co. v. R.R., 125 N.C. 17, 34 S.E. 100 (1899). Under certain circumstances it was held that judgments entered as a result of unauthorized appearance or consent of counsel could not be set aside or modified except on the ground of mutual mistake or fraud.
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 Co. v. R. R., 125 N.C. 17, 24, 34 S.E. 100; Stallings v. Spruill, 176 N.C. 121, 96 S.E. 890. The case at bar is distinguishable from the case of Crissman v. Palmer, 225 N.C. 472, 35 S.E.2d 422; and Lerch v. McKinne, 187 N.C. 419, 122 S.E. 9, cited in plaintiff's brief, which in effect hold that the relief given under G.S., 1-220, on the ground of "mistake, inadvertence, surprise or excusable neglect" refers to mistake of fact and not of law, in that it does not appear that defendant's neglect to file answer was wholly due to the impression her attorney was under that further papers were to be served on her before plaintiff could proceed further.
Hartsfield v. Jones, supra; 5 R. C. L., 258, sec. 10; Mechem, Public Officers, 666, sec. 1001. It is obtained on application supported by affidavit addressed to the appellate court having jurisdiction. Taylor v. Johnson, 171 N.C. 84, 89 S.E. 1066; Bayer v. R. R., 125 N.C. 17. On the other hand, the issuance of a writ of mandamus is an exercise of original and not appellate jurisdiction.
It is the law of this State that except in cases concerning the care and custody of children, no appeal lies from a judgment in habeas corpus proceedings, but the same must be reviewed, if at all, on writ of certiorari, duly applied for and resting in the sound discretion of the court. In re Lee Croom, 175 N.C. 455; citing Ice Co. v. R. R., 125 N.C. 17, and In re Holley, 154 N.C. 163. In deference to these and other like decisions, we must hold that the appeal of the petitioner be dismissed.
His Honor held correctly that an appeal would not lie from his judgment refusing to discharge the defendant from custody ( In re Holley, 154 N.C. 163), and the remedy, if any, is by a petition for a writ of certiorari, which is addressed to the sound discretion of the Court. Ice Co., v. R. R., 125 N.C. 17. If this was not the rule, the criminal law could not be administered, and it would be with difficulty that any judgment of imprisonment could be executed, as the writ of habeas corpus always issues when legally applied for, because the statute (Revisal sec. 1828) subjects a judge who refuses to entertain the petition to a penalty of $2,500, and if his judgment can be reviewed by appeal, or if the certiorari issues as of right, the sentence of imprisonment might be suspended indefinitely between the Superior and the Supreme Court.
To carry the interference further beyond this point would be forgetting that there is another party in the case equally entitled to our protection." This statement of the law was quoted with approval and applied in the recent case of Ice Co. v. R. R., 125 N.C. 17. See, also, Peregoy v. Bank, 147 N.C. 295; Hairston v. Garwood, supra. It is said by the Chief Justice in Westhall v. Hoyle, 141 N.C. 337: "The consent of counsel is stated in the judgment, and is binding upon the defendants in the absence of fraud and collusion," citing Hairston v. Garwood, supra.
The party may be made a bankrupt by the payment of the (433) judgment, or he may lose his home before he can sue his attorney, and when he sues he must take the chance of the jury finding the issues against him or reducing the amount of his recovery, or, if he recovers judgment, of the attorney becoming insolvent during the progress of the action. The three cases in our Reports which give color to the contention that the party is not entitled to relief if his attorney is solvent ( University v. Lassiter, 83 N.C. 38; Chadbourn v. Johnston, 119 N.C. 282; Ice Co. v. R. R., 125 N.C. 17) are not in conflict with the views we have expressed. In the Lassiter case the defendant, who moved to set aside the judgment, did not employ counsel, and he paid no attention to an action commenced in 1876 until after final judgment in 1879, and relief was denied upon the ground of the negligence of the party, and not of the attorney.
To carry the interference further beyond this point would be forgetting that there is another party in the case equally entitled to our protection." This statement of the law was quoted with approval and applied (545) in the recent case of Ice Co. v. R. R., 125 N.C. 17. In our case it is admitted that the attorney was authorized to represent the defendant, and if he did not act with judgment and in accordance with private instructions as to how he should conduct the suit, the remedy is not by setting aside the judgment, for no such case is shown in the record as entitles the defendant, under the authorities, to that relief.