#### M. S. SIMPSON et al, v. D. BROWN et al.

Motion to Bat Aside Judgment for Excusable Negleet— Inexcusable Negligence.

Where, on a motion to set aside a judgment for excusable negleet under Section 374 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 ha$. 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 court house, 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 thfe judgment will not be set aside.

MotioN by T. A. Fowler to set aside a judgment rendered at January Term, 1895, of UNION Superior Court, beard before Timberlahe, Jupon affidavits alleging excusable neglect, &c. ITis Honor refused the motion and defendant appealed. The facts appear in the opinion of Chief Justice Eaikoloth.

Messrs. H. B. Adams and McRae & Day, for defendant (appellant).

Mr. F. I. Osborne, for plaintiff (appellee).

Faikclotii, C. J.:

This is a motion to set aside a judgment for excusable neglect, under The Gode, 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 March 18, 1894, having failed to enter an appearancé. At August Term, 1894, the defendant was present and knew his attorney was dead, but employed no other attorney. *483One month before January Term, 1895, the case was put on the calendar and was set for trial on January 4, 1895, and the calendar was published in two weekly newspapers at Monroe for one month. The defendant lived 19 miles from the court-house 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 August 13, 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 Glarh's Code, pp, 231, 232, 233, 234.

Affirmed.