#### J. A. PIERCE v. HENRY ELLER et al.

(Filed 16 December, 1914.)

1. Judgments — Motions to Set Aside — Excusable Neglect — Reversing Previous Order — Judgment—Estoppel.

Where an order refusing to set aside a judgment for excusable neglect, etc., on motion made within twelve months (Revisal, sec. 513), has without objection been set aside by the same judge, at the next succeeding term of court, the original motion is left pending and the movant is not estopped by the former judgment denying his motion.

2. Judgments — Motions to Set Aside — Excusable Neglect — Facts Found — Legal Inference — Appeal and Error.

The findings of fact by the trial judge upop which he bases his decision on motion to set aside a judgment for excusable neglect are conclusive of the facts found, but not as to matters of law or legal inference arising therefrom.

*6733. Same — Old' Age — Pleadings—Lands—Bond for Possession — Default.

It is required of a party litigant that lie shall give his case such attention as a man of ordinary prudence gives to his important business, and that he must not sleep on his rights. Hence, setting aside by the trial judge of a judgment obtained against a party on the ground that he was old and feeble will be reversed on appeal, when it appears from the 'facts found that the judgment in question was one by default in an action against him to recover lands in his possession, and the action had been pending several years without answer filed or bond given to retain possession ; that there was no finding that the party was not of sound mind and nothing appearing to show why these necessary steps had not beefi taken.

Appeal by plaintiff from Webb, J., at January Term, 1914, of WlLKES.

This is a motion to set aside a judgment rendered at August Term, 1912, of Wilkes Superior Court, beard before Webb, J., at January Term, 1914, of said Superior Court.

Tbe action is to recover land and damages for trespass tbereon.

Tbe summons was issued on 4'June, 1907, and served on 6 June, 1907. Tbe complaint was filed and the cáse continued from term to term until January Term, 1912, when tbe plaintiff obtained leave to file a complaint in place of tbe one theretofore filed, which bad been misplaced, and tbe defendant was allowed thirty days to file answer. Tbe complaint was filed 28 February, 1912. Tbe case was on tbe calendar for tbe August Term, 1912, and, no answer being filed, tbe judgment appearing in tbe record was signed and tbe cause continued for inquiry as to damages. On 10 January, 1913, tbe defendants filed an affidavit, and served notice on tbe plaintiff, to set aside tbe judgment rendered at August Term, 1912, which motion was beard by Judge Cline at August Term, 1913, of Wilkes Superior Court, upon affidavits filed pro and con/ when Judge Cline refused to set aside said judgment, and taxed tbe defendants with tbe cost of tbe motion, and directed that tbe case be continued for trial upon tbe question of damages for tbe removal of tbe timber.

To this refusal to set aside said judgment tbe defendants did not except or appeal.

At-October Term, 1913, tbe case was on tbe trial calendar as to damages, but tbe defendants were not ready, and a contention arose between tbe attorneys as to tbe exact location of tbe 8 acres of land referred to in tbe judgment of August term, when Judge Cline set aside bis order of tbe former term.

At January Term, 1914, tbe case was again on tbe calendar for trial as to damages, and upon tbe call of tbe case tbe defendants renewed their motion to set aside tbe former judgment, when Judge Webb beard *674tbe affidavits, upon tbe same state of facts as passed upon by Judge Cline, and rendered tbe judgment setting aside tbe judgment of August Term, 1912, and tbe plaintiff appealed.

His Honor, Judge Webb, found tbe following facts bearing on excusable neglect:

“Tbe court further finds it a fact that at tbe time tbe summons was issued in tbis cause against tbe defendants by tbe plaintiff, and at tbe time tbe judgment by default was taken in tbis cause by tbe plaintiff against’tbe defendants, the defendants were very old people, they being approximately 76 years of age. -Tbe court finds that they were at tbe time of taking said judgment very feeble, and tbe said Henry Eller, being bard of bearing and very forgetful, owing to bis old age and feeble health, was not able to carry current events in bis mind but a very short time.

“Tbe court further finds it a fact that neither of them have any recollection that 'a summons was served on them in tbe above entitled action, but it is not denied that it was so served. Said action was commenced on 4 June, 1907, and tbe summons • served, as tbe return shows, on 6 June, 1907; that at tbe time of tbe service of said summons Henry Eller was sick and remained sick for some time, but nothing was ever said to him about tbe suit, so far as be remembers, until tbe judgment was rendered, or rather some time after tbe judgment was rendered, which was at August Term, 1912, of tbis court; that be, being old and feeble, bad entirely lost sight of tbe suit, and does not now remember any circumstance about it, not even tbe service of tbe summons upon him; that tbe record shows that tbe complaint was filed and lost, or misplaced, and plaintiff obtained leave to file another complaint, which has been done, as tbe records show, on 28 February, 1912.

“Tbe court further finds it a fact that tbe defendant claims that bis title deed covers tbe land, or a part of it, in dispute, and that be bad a bona fide claim and title to all tbe land in controversy, or at least part of tbe same.

“Tbe court finds it a further fact that after Judge Cline made bis last order therein that tbe records of tbe court do not show that any request was made to continue said motion thereafter, but tbe same came on for bearing before tbe undersigned upon motion of tbe defendants at said January Term, 1914.

“Tbe court further finds it a fact that tbe defendants did not know of tbe institution of said suit against them by tbe plaintiff, and did not know that any judgment was taken against them in tbe cause by default until some time thereafter; or, at least, if they bad such knowledge, by reason of their infirmities and old age and sickness, they bad forgotten it.”

*675Tbe motion ivas allowed, and tbe plaintiff appealed.

W. W. Barber for plaintiff.

Finley & Hendren for defendants.

AlieN, J.

Tbe order of Judge Cline, made at August Term, 1913, refusing to set aside tbe judgment, is not an estoppel upon tbe defendants, because at tbe succeeding September term tbe same judge set aside tbe order of tbe August term without objection by either party, and when this was done it left pending tbe motion of the defendants to set aside tbe judgment upon tbe ground of excusable neglect, and this was made within twelve months, as required by tbe statute, Revisal, sec. 513.

This leaves for consideration tbe order of Judge Webb, and while bis findings of fact are conclusive upon us, bis determination of tbe legal question, that there is excusable neglect, is reviewable on appeal. Stockton v. Mining Co., 144 N. C., 596.

It has been held repeatedly by this Court that persons of sound mind who are served with process must be active and diligent, and that if they fail to give litigation tbe attention which a man of ordinary prudence usually gives to bis important business, they can have no relief under tbe statute. Sluder v. Rollins, 76 N. C., 271; Roberts v. Allman, 106 N. C., 394; School v. Pierce, 163 N. C., 427.

In tbe first of these cases tbe Court says: “Tbe least that can be expected of a person having'a suit in court is that be shall give it that amount of attention which a man of ordinary prudence usually gives to bis important business,” and this was quoted in tbe second case. And in tbe last case: “Tbe law does not allow a party to sleep on bis rights. He must keep awake and be alert, exercising tbe care and watchfulness of an ordinarily prudent man in protecting bis rights and saving bis interests. We have held that tbe standard of care by which be must be judged is that which a man ordinarily prudent bestows upon bis important business. Roberts v. Alman, 106 N. C., 391.”

Applying these principles, we are of opinion there is no excusable neglect.

Tbe defendants are old and feeble, it is true, but there is no finding that they are not of sound mind, and they are defending this motion without tbe intervention of a guardian.

Tbe action is to recover land and damages for trespass on land, and although there is no denial that tbe summons was regularly served, they have taken no steps for five years to prepare a defense.

It was their duty to file a bond, and they bad no right to answer and defend until they bad done so or bad shown their inability to give bond. Vick v. Baker, 122 N. C., 99; Norton v. McLaurin, 125 N. C., 189.

*676It does not appear that they employed counsel, that they made any effort to file a bond, that they made application for time to answer, that they ever made any inquiry as to the course of the litigation, and'the only excuse for their neglect is that they were so inattentive they forgot the suit.

If under these circumstances a judgment can be set aside, no one will be secure in his rights, if the judgment is against one old and feeble.

Reversed.