#### J. D. GRANDY v. CAROLINA PRODUCTS COMPANY.

(Filed 8 May, 1918.)

Judgments — Appearance—Trials—Default—Attorney and Client — Laches— Motions.

The plaintiff allowed the return term of court, to pass without filing complaint,, and also negligently delayed filing reply after the answer, alleging a counterclaim had been filed. The defendant’s attorneys were *512nonresident of the county, but practitioners therein, and repeatedly informed their client that no advantage could be taken by plaintiff, and they knew that the case would not be reached, according to the usual setting of the trial calendar, until a year or more thereafter. The reply was filed near the end of a term, the case specially set by the judge and called therein, but continued to a fixed time at the next term with order to notify defendant’s attorneys. The only notification was by sending a copy of the calendar by mail in an unsealed envelope, showing the setting thereon of the case in question. A meritorious defense being shown on defendant’s motion to set aside the judgment consequently rendered by default, it is SelA, the action of the trial court in setting aside- the judgment for excusable neglect was not erroneous; and even if the defendant’s attorneys were in laches, it would not bind the defendant, who had shown himself free therefrom.

Clark, C. J., dissenting.

Appeal by plaintiff from order of Webb, J., made 9 October, 1916 j, from Meoklenbueg.

This is a motion to set aside a judgment on tbe ground of excusable neglect. Tbe judge found tbe facts, and among others that tbe defendant has a meritorious defense. Tbe motion was allowed, and tbe plaintiff excepted and appealed.

Thomas W. Alexander for plaintiff.

Kenan & Wright and Stewart & McRae for defendant.

Allen, J.

Tbe summons was served on tbe defendant on 6 October, 1916, but tbe complaint was not filed until 9 January, 1917, three months later, although due at tbe October Term of Court.

Tbe answer, which denied tbe plaintiff’s cause of action and alleged a counterclaim, was filed 23 January, 1917, twelve days after tbe complaint, and tbe reply on 9 February, 1917, seventeen days after the answer.

The reply was filed during a term of court which began 5 February,. 1917, and tbe action was set for trial 12 February, 1917, three days after issue joined.

It thus appears that tbe defendant bad tbe opportunity to move to dismiss tbe plaintiff’s action for failure to file complaint within tbe statutory time, and to move for judgment on bis counterclaim at tbe beginning of tbe February term for want of a reply.

Tbe attendance of tbe defendant and its counsel on 12 February could not reasonably be expected, nor could a trial be anticipated when tbe filing of tbe reply was delayed until after tbe term of court began, and this is not urged as negligence. .

Tbe judge who presided at tbe February term saw and appreciated tbe situation, and be directed that tbe trial be postponed and tbe cause *513set for bearing on 14 March, 1917, and that tbe defendant be notified of bis order.

No notice was sent to tbe defendant except a copy of tbe calendar was mailed to counsel as second-class matter, and was overlooked, and tbe action was tried on 14 March in tbe absence of tbe defendant and bis counsel.

If these facts show negligence on tbe part of counsel, it consists in failure to examine a court calendar sent to him as a circular, which frequently finds its way to tbe waste basket without being read, or because be did not make inquiry as to tbe status of tbe action during a period of thirty-three days elapsing between tbe filing of tbe reply and tbe date of tbe trial, when in the regular course of the docket and in tbe absence of tbe order advancing it ahead of other cases, it would not have been reached for trial until six or eight months later. Tbe twelfth and thirteenth findings of fact are:

“That defendant’s counsel knew that tbe civil issue docket of Meck-lenburg County was congested, independently of what plaintiff’s counsel wrote them; that in the ordinary course it would take about a year from tbe time action was brought to secure a trial in its regular order. Defendant’s counsel were of tbe impression that plaintiff’s counsel bad agreed to notify them when tbe case would be called, but tbe court finds that there was no such definite agreement.

“This case was placed on tbe calendar and tried ahead of many other cases on tbe civil issue docket in this county which were instituted before it was, and if they bad been tried in their regular order this case would not have been called for trial until some time later than tbe last February Term, 1917.”

If, however, tbe negligence of counsel is established, this is not sufficient reason for denying relief to tbe defendant, since it has been held in numerous eases that tbe negligence of counsel in tbe performance of professional duties will not be attributed to tbe client. Griel v. Vernon, 65 N. C., 76; Bradford v. Coil, 77 N. C., 76; Ellington v. Wilker, 87 N. C., 16; Gwathney v. Savage, 101 N. C., 107; Taylor v. Pope, 106 N. C., 267; Gaylor v. Berry, 169 N. C., 733; Shirle v. Ins. Co., 171 N. C., 431; Seawell v. L. Co., 172 N. C., 325; Lumber Co. v. Cottingham, 173 N. C., 328; Gallins v. Ins. Co., 174 N. C., 555.

In tbe Cottingham case, Wallcer, J., says: “Tbe distinction between tbe negligence of counsel while engaged in tbe performance of a professional duty and tbe negligence of tbe party is clearly marked, and tbe uniform rule with us is that tbe negligence of tbe first will not be attributed to tbe client, if be himself is in no fault; and this is true without regard to tbe solvency or insolvency of counsel. Schiele v. Ins. Co., 171 N. C., 426.” And Brown, J., in tbe Gallins case: “Assuming *514that Hobbs was negligent, the relation of 'attorney and client existed between Hobbs and defendant. The latter was in no default and will not be held responsible for the negligence of its counsel in failing to perform an act exclusively within the line of his professional duties. The case, we think, falls clearly within the rule laid down in Seawell v. Lumber Co., 171 N. C., 324.”

It is true that in nearly all these cases relief was sought against judgments by default on failure to answer, but the same principle prevails now where there has been a verdict, since the amendment of 1893, incorporating “verdict” in the original statute.

We must then inquire as to the conduct of the defendant and see if it is in default.

Hoke, J., says in Bank v. Palmer, 153 N. C., 503: “That a party litigant 'who seeks to be excused for laches on the ground of excusable neglect, must show that the counsel employed is one who regularly practices in the court where the litigation is pending or at least one who is entitled to practice therein and was especially engaged to go thither and attend to the case.’ Manning v. R. R., 122 N. C., 824.”

This requirement has been complied with strictly, as the judge finds : “That immediately after the service of summons on defendant it employed Kenan & Wright, a reputable firm of experienced lawyers, living in Wilmington, N. C., duly licensed to practice law in the State of North Carolina, authorized to practice in the courts of Mecklenburg County, and who, while they did not regularly attend every term of court of Mecklenburg County, had and were then practicing in said court, had other cases, and especially agreed to go to Charlotte and try this case, and do everything that was necessary to protect the defendant’s interest.”

But the employment of counsel does not excuse the client from proper attention to his case (Pepper v. Clegg, 132 N. C., 312), and “the test of the negligence of the client or party is whether he has acted as a man of ordinary prudence while engaged in transacting important business.” Seawell v. L. Co., 172 N. C., 325. “The standard of care required of a defendant is that which an ordinarily prudent man bestows upon his important business.” Gaylord v. Berry, 169 N. C., 733.

The defendant has met this test, and has measured up to the standard.

The judge finds that: “Defendant, after it first employed Kenan & Wright, continually consulted them about the case, asked them time and again if there was any chance of plaintiff securing a judgment without defendant being notified, advised said counsel that it has never been sued before, and did not know what was necessary to do; that said counsel assured defendant that they would attend to the case, and do all things necessary, and that no judgment would be taken against them *515without due notice; and defendant relied on tbe assurances of said counsel, and proceeded to locate tbe witnesses and arrange for baying tbeir depositions taken, and acted in regard to tbis matter as a reasonably prudent business man would in regard to important business.”

In Ellington v. Wicker, 87 N. C., 15, tbe client failed to attend a term of court upon tbe assurance of counsel tbat it was not necessary for bim to do so, and tbe Court said: “Surely bis absence upon tbis information was excusable and tbe judgment entered up a surprise witbin tbe meaning of tbe statute, and no culpable default can be implied to bim,” and in Taylor v. Pope, 106 N. C., 270, a party was relieved of a judgment on tbe ground of excusable neglect, wben be left court relying on tbe promise of bis counsel “to attend to tbe case.”

Tbe facts in these cases show no greater diligence than tbat of tbe defendant, nor was there more reason for relying on tbe assurances >of counsel.

Affirmed.