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Attorney(S)

John H. McElroy and Guy V. Roberts for plaintiff. J. Y. Jordan, Jr., and Calvin, R. Edney for defendants.

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Smart Summary

Summary of Opinion: Gaither Carter v. N. P. Anderson and H. C. Anderson, Administrator of the Estate of W. C. Anderson, Deceased

Factual and Procedural Background

Defendants moved to vacate and set aside a judgment rendered against them at the March, 1934 Term of Madison County Superior Court. The motion was heard at the March, 1935 Term before Judge Wilson Warlick upon verified motion and affidavits submitted by both plaintiff and defendants. The trial court found that the case had been placed on the civil calendar for the March, 1934 Term; defendants and their attorney, I. C. Crawford, attended court Monday and Tuesday of that term; their attorney moved for a continuance which the court denied; thereafter defendants and their attorney left the court without obtaining the court's permission or any definite agreement with the court or opposing counsel and did not return to defend the case; the case was reached for trial on Friday, a jury returned a verdict for the plaintiff, and judgment was entered. The trial court found that defendants and their attorney had not exercised due diligence and denied defendants' motion to vacate. Defendants appealed, assigning as their sole exception that the trial court erred in overruling their motion to vacate and set aside the judgment. The Supreme Court of North Carolina, in an opinion by Clarkson, J., affirmed the judgment of the court below.

Legal Issues Presented

Whether the appellants (defendants) exercised due care and diligence in the preparation and trial of the case sufficient to justify vacating and setting aside the judgment under N.C. Code (1931 Michie), sec. 600.
Whether the findings of fact by the trial court on a motion to set aside a judgment for excusable neglect, when supported by competent evidence, are conclusive on appeal.

Arguments of the Parties

Defendants' Arguments

Defendants filed a verified motion to vacate and set aside the judgment rendered at the March, 1934 Term and appealed the denial of that motion; their sole assignment of error was that the court erred in overruling the motion.
Defendants cited Sutherland v. McLean et al., 199 N.C. 345 (as noted in the opinion) in support of their position; the opinion records that defendants relied on that authority.

Plaintiff's Position

Plaintiff opposed the motion to vacate, submitted affidavits in support of the trial court's findings, and moved in the trial court for denial of defendants' motion; the trial court granted that motion and denied defendants' request to vacate the judgment.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Dunn v. Jones, 195 N.C. 354	Authority for the proposition that a judgment may be set aside under the statute only upon a showing of excusable neglect and a meritorious defense.	Cited to state the statutory standard applicable to motions under N.C. Code, sec. 600.
Bowie v. Tucker, 197 N.C. 671	Authority for the proposition that a judgment may be set aside under the statute only upon a showing of excusable neglect and a meritorious defense.	Cited together with Dunn v. Jones to explain the requirements for relief under sec. 600.
Helderman v. Mills Co., 192 N.C. 626	Explains that negligence of an attorney will not be imputed to a defendant who was free from blame.	Used to note the general rule but distinguished because, on the facts found, the defendants were not free from blame; also cited for the principle that trial-court findings supported by competent evidence are conclusive on appeal.
Edwards v. Butler, 186 N.C. 200	Support for the principle that attorney negligence will not be imputed where the client is free from blame.	Cited within the discussion of Helderman to support the attorney-imputation principle; the court contrasted that principle with the present facts.
Sutherland v. McLean et al., 199 N.C. 345	Authority relied on by defendants (characterized in the opinion as involving a client who relied on his attorney and had no personal knowledge of the situation).	Cited by defendants but the court distinguished it from the present facts, stating it was not applicable because defendants here were present and knew the continuance had been denied.

Court's Reasoning and Analysis

The court framed the issue as whether the appellants exercised due care and diligence sufficient to justify vacating the judgment under N.C. Code (1931 Michie), sec. 600. It recited the statutory standard permitting relief for mistake, inadvertence, surprise, or excusable neglect within one year and noted that relief requires a showing of excusable neglect and a meritorious defense (citing Dunn v. Jones and Bowie v. Tucker).

The court accepted the trial court's findings of fact as supported by sufficient competent evidence and therefore conclusive on appeal. The trial court had found: the case was on the civil calendar; defendants and their attorney attended the March term; the attorney's motion for continuance was denied; defendants and attorney left without permission or any definite agreement that the case would not be reached; they did not return; the case was tried and judgment entered; and defendants and their attorney had not exercised due diligence.

The opinion acknowledged the general rule from Helderman (and Edwards) that attorney negligence is not imputed where the client is free from blame, but concluded that those authorities did not control because the trial court found defendants themselves were to blame. The court rejected the applicability of Sutherland v. McLean, cited by defendants, on the ground that in Sutherland the client relied on his attorney and had no personal knowledge of the situation, whereas in the present case the defendants were personally present and knew the court had denied the continuance yet left without a definite agreement and failed to return to defend the case.

Holding and Implications

AFFIRMED.

The Supreme Court affirmed the trial court's denial of defendants' motion to vacate and set aside the judgment. The direct effect is that the judgment rendered at the March, 1934 Term stands and defendants' motion for relief under N.C. Code, sec. 600 was denied. The opinion rests on the trial court's factual findings (supported by competent evidence) that defendants and their attorney failed to exercise due diligence; the court distinguished contrary authority cited by defendants and did not grant relief. The opinion does not announce any broader new rule of law beyond applying established principles to the facts of this case.

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GAITHER CARTER v. N. P. ANDERSON AND H. C. ANDERSON, ADMINISTRATOR OF THE ESTATE OF W. C. ANDERSON, DECEASED.

1. Appeal and Error J c —

The findings of fact by the trial court upon the hearing of a motion to set aside a judgment for excusable neglect, N.C. Code, 600, are conclusive on appeal when supported by any competent evidence.

2. Judgments K b — Judgment held taken upon neglect of client present at time of refusal of his attorney's motion for continuance.

Although the neglect of an attorney employed to defend an action will not ordinarily be imputed to his client, and will not, therefore, prevent the setting aside of a judgment by default upon a showing of excusable neglect and a meritorious defense, N.C. Code, 600, where the trial court finds upon supporting evidence that defendants and their attorney were present in court at the beginning of the term at which the judgment was rendered, that defendants' motion for a continuance was refused, and that defendants and their attorney thereupon left the court room without definite agreement with the court or opposing counsel, and did not return to defend the case, and that both defendants and their attorney had failed to exercise due diligence, the court's refusal of the motion to set aside the judgment will be affirmed on appeal.

SCHENCK, J., took no part in the consideration or decision of this case.

This was a motion made by defendants to vacate and set aside a judgment rendered against them at the March, 1934, Term of court of Madison County. After due notice, the matter regularly came on to be heard before his Honor, Wilson Warlick, judge presiding at the March, 1935, Term of Madison Superior Court, and after hearing the reading of affidavits and argument of counsel, the court refused to grant the motion of defendants, and judgment was rendered as follows:

"The above entitled matter coming on for a hearing before his Honor, Wilson Warlick, judge presiding, and being heard upon the verified motion to set aside and vacate the judgment heretofore rendered in said cause at the March, 1934, Term of the Superior Court of Madison County, and being heard upon said verified motion, together with affidavits submitted by both the plaintiff and the defendants, the court finds the following facts:

"That this action, as above entitled, was duly commenced and was pending and at issue prior to the March, 1934, Term of the Superior Court of Madison County; that said case was duly placed upon the civil calendar for trial at said March Term, 1934, and that the defendants, represented by their attorney, I. C. Crawford, were in attendance upon said court during Monday and Tuesday of said term; that the defendants, through their attorney, made a motion for a continuance of said case, which motion was denied.

"That thereafter, without obtaining permission of the court, the defendants, together with their attorney, left the court without any definite agreement with the court or the attorneys in opposition that said case would not be reached for trial, did not return to defend said case; that said case was duly reached for trial on Friday, during the March Term, 1934, and a jury was regularly impaneled, issues submitted and answered by the jury in favor of the plaintiff, and judgment pronounced thereon.

"Upon the above findings of facts, the court being of the opinion that the defendants and their attorney had not exercised due diligence in the defense of their cause,

"It is therefore, upon motion of Guy V. Roberts and John H. McElroy, attorneys for plaintiff,

"Ordered, adjudged, and decreed that the defendants' motion to vacate and set aside the judgment heretofore rendered be and the same is hereby denied. All affidavits are herewith incorporated herein. Wilson Warlick, Judge Presiding."

The only exception and assignment of error is that "The court erred in overruling defendants' motion to vacate and set aside the judgment rendered against them."

CLARKSON, J.

The question presented: Did appellants, defendants in the trial Court, exercise due care and diligence in the preparation and trial of the case against them sufficient to justify the vacating and setting aside of the judgment rendered against them in the Superior Court of Madison County, N.C. ? We think not.

This is a motion by defendants to set aside a judgment for excusable neglect, under N.C. Code, 1931 (Michie), sec. 600, which, in part, is as follows: "The judge shall, upon such terms as may be just, at any time within one year after notice thereof, relieve a party from a judgment, order, verdict, or other proceeding taken against him through his mistake, inadvertence, surprise, or excusable neglect, and may supply an omission in any proceeding," etc.

A judgment may be set aside under this section if the moving party can show excusable neglect, and that he has a meritorious defense. Dunn v. Jones, 195 N.C. 354; Bowie v. Tucker, 197 N.C. 671.

In Helderman v. Mills Co., 192 N.C. 626 (629), it is said: "The negligence of the attorney, upon the facts found, even if conceded, will not be imputed to defendant, who was free from blame. Edwards v. Butler, 186 N.C. 200."

In the present cause the court below found the facts. There was sufficient competent evidence to support these findings of fact, and therefore conclusive upon appeal by defendants to this Court. Helderman v. Mills Co., supra, p. 628.

Upon the facts found, we do not think the judgment should be set aside on the most liberal construction of the act. The court below found that defendants were to blame. "That the defendants and their attorney had not exercised due diligence in the defense of their cause." The case was calendared for trial at the March Term, 1934, of the Superior Court of Madison County, N.C. Defendants brought their attorney with them from another county. A motion was made to the court by their attorney, the defendants being present, to continue the case. The court denied this motion. The defendants and their attorney left the court without any definite agreement with the court or the attorneys for the opposition and never returned to defend the case.

We do not think Sutherland v. McLean et al., 199 N.C. 345, cited by defendants, applicable to the facts in this case. In that case the client was relying on his attorney and had no personal knowledge of the situation. In the present case, the defendants were in court and knew that the court had refused to continue their case; notwithstanding this, they and their attorney left the court without any definite agreement with the court or with the opposing counsel.

For the reasons given, the judgment of the court below is

Affirmed.