#### W. F. HUNTER v. SOUTHERN RAILWAY COMPANY and ATLANTIC COAST LINE RAILWAY COMPANY.

(Filed 15 October, 1913.)

1. Appeal and Error — Laches—Excusable Neglect — Meritorious Defense — Recordari—Burden of Proof.

Upon motion in the Superior Court for a recordari to a justice’s court upon the ground of excusable neglect in perfecting the appeal, the burden of proof is on the movant to show that his neglect was excusable, as well as that he had a meritorious defense.

*2822. Appeal and Error — Laches—Recordari—Trials—Court’s Discretion.

Where the Supreme Court has set aside an order of the Superior Court granting a recordari to a justice’s court for that the affidavit and petition did not set out a meritorious defense, it is in the sound discretion of the Superior Court judge to permit the movant to file additional affidavits for the purpose of showing that the defense relied on was meritorious.

3. Appeal and Error — Laches—Partnerships—Knowledge Presumed.

In law each copartner is charged with knowledge of the business of the firm, and excusable neglect in bringing up an appeal from the justice’s court to the Superior Court is not shown because of the sickness of the member of a law firm appearing in the case, who usually attended to cases of the character of the one at bar, and the ignorance of the existence of the case by the other.

Walk.ee, J., concurring in result; Allest, J., dissenting.

Appeal by plaintiff from 0.' H. Allen, J., at August Term, 1913, of LeNolb.

Petition for recordari. Tbe judge granted tbe writ below and ordered tbe cause to be docketed. Plaintiff excepted and appealed.

T. 0. Wooten, T. T. Ormond for plaintiff.

Rouse •<& Land for defendants.

BkowN, J.

Tbis cause was before us at former term, 161 N. 0., 504, and tbe report of tbe case is referred to in connection witb tbis opinion.

On that appeal it was deemed unnecessary to pass on tbe question of excusable neglect, as we held that tbe affidavit of Rouse and tbe petition for recordari did not set out a meritorious defense to plaintiff’s cause of action, and we set aside tbe order granting tbe writ.

Tbe burden is on defendants to show excusable ■ neglect as well as a reasonably meritorious defense. Tbe defendants renewed tbeir motion for tbe writ, and bis Honor, Judge Allen, permitted them to file tbe affidavit of Land in addition to the former affidavit of Rouse, for the purpose of showing a meritorious defense. Tbis was excepted to by tbe plaintiff.

*283We see no objection to tbis. It was a matter in tbe sound discretion of tbe court below. Where a case is not finally disposed of on appeal, amendments are discretionary with tbe court below, and tbe court may bear additional facts. Foy v. Hanghton, 83 N. C., 410; McMillan k Baker, 92 N. C., 110; Jones v. Simpson, 94 N. C., 700; Ashby v. Page, 108 N. C., 6; Belville v. Gox, 109 N. C., 265.

His Honor found tbe facts set out in tbe two affidavits to be true, and held that tbe facts made out a case of excusable neglect as well as a meritorious defense.

All that is before tbe Court as to tbe question of excusable neglect is contained in tbe affidavit of N. J. Eouse, and tbe excuse therein urged is the-sickness of bis partner; Land, who, in accordance with tbe custom and practice in tbe office of tbe firm, bad charge of tbis case, and upon him was the duty of its preparation, etc., and who on account of sickness left Kin-ston without informing bis associate of tbe pendency of tbe action.

We do not think these facts make oüt a case of excusable neglect. In actual practice it may be otherwise, but in law each copartner is charged with knowledge of tbe business of tbe firm.

When Land left the office of bis firm on account of illness, it was bis duty to give notice of tbe pendency of tbis action in tbe court of tbe justice of tbe peace to bis copartner, Eouse.

No facts are given in tbe affidavits tending to show that be was mentally and physically incapacitated to mention tbe matter to bis copartner. Independent of that, bis copartner is charged in law with knowledge of. tbe firm’s business.

Tbe same excuse was urged in White v. Rees, 150 N. C., 679, and held to be insufficient.

In that case, Justice Walker says: “Tbe member of tbe law firm who bad special charge of tbe case was too sick to attend, but no sufficient, excuse is shown for tbe failure of tbe other two members of tbe firm to attend.”

Tbe petition for recordari is denied.

Eeversed.

AlleN, J., dissents; Walkek, J., concurs in result.