#### W. W. MEECE v. COMMERCIAL CREDIT COMPANY.

(Filed 15 June, 1931.)

Judgments K d — Judgment by default may be set aside by defendant without fault who has employed counsel of another county to appear therein.

Where a defendant has employed a licensed, reputable attorney of good standing, residing in one county of the State, to defend an action brought in another county, and has put him in possession of the facts constituting his defense, and the attorney has prepared and duly filed an answer, and the case has been calendared and called for trial without notice to the defendant or his attorney: Held,, upon a judgment being obtained by default against the defendant, the defendant may, upon his motion aptly made, have the judgment set aside for surprise, excusable neglect, etc., upon a showing of a meritorious defense, the negligence of the attorney, if any, not being imputed to the client, and the latter being without fault. C. S., 600.

Staoy, C. J., dissenting; Adams, J., concurs in dissent.

Civil actiom, before Harwood, Special Judge, at January Term, 1931, of Oheeokee.

*140Tbe necessary facts appear in tbe judgment and findings of fact upon wbicb it is based. Said judgment is as follows:

“Tbe motion of tbe defendant in tbe above-entitled cause to bave set aside tbe judgment obtained through mistake, surprise, inadvertence and excusable neglect, coming on to be beard before Hon. J. H. Harwood, judge bolding tbe January Term, 1931, of said Superior Court, and being beard upon tbe petition of defendant, with exhibits thereto1, tbe affidavit of Henry E. Fisher, and tbe answer of plaintiff to said petition, tbe Court finds tbe following facts, and enters tbe following judgment, to wit:

(1) That tbe plaintiff instituted tbe above cause on 19 September, 1930, and filed bis complaint therein; and summons in said action was served on defendant at its office in Mecklenburg County, North Carolina, by tbe sheriff of Mecklenburg County on 19 September, 1930.

(2) That said defendant promptly employed Henry E. Fisher, a duly licensed, reputable attorney of Charlotte, N. C., to draft and file answer in said cause, and to go to Cherokee County, where said action was pending, and represent tbe defendant therein; that said defendant gave to said attorney tbe facts necessary for drafting answer; that said attorney, in apt time, filed said answer, mailing same to tbe clerk of said court, and at tbe same time wrote plaintiff's counsel of tbe filing of tbe said answer, as set out in said Fisher’s affidavit in this cause; that tbe defendant inquired of its said attorney if there was anything else it could do in said case, after having given said attorney tbe names and addresses of its witnesses and said attorney stated that there was nothing else to be done, and that be would notify tbe defendant when said case should be reached for trial so it could bave its witnesses present and make defense to said action; that tbe defendant relied upon said attorney’s advice and did nothing else, as it knew of nothing else it could do.

(3) That said Henry E. Fisher, at said time was, and now is, duly licensed to practice bis profession, by authority of tbe Supreme Court, in tbe courts of all counties in this State, and after having filed said answer on wbicb bis name appeared alone as counsel, be expected or anticipated tbe clerk would mail him a copy of tbe court calendar when said cause was placed thereon, as such was tbe practice, in regard to nonresident lawyers, in Mecklenburg and other counties in wbicb said attorney appeared.

That said case was calendared for trial at tbe November Term, 1930, of said Superior Court, but was continued, of wbicb defendant and its counsel bad no notice; that same was again calendared at tbe January Term, 1931, without notice whatever to defendant or its counsel, and was tried in bis absence as well as that of tbe defendant *141and its witnesses, on tbe pleadings and evidence offered by plaintiff; tbat said pleadings, tbe issues and judgment, set forth as exhibits in defendant’s petition, are here referred to and made a part of this judgment.

(4) Tbat neither tbe defendant nor tbe defendant’s counsel requested of plaintiff, bis counsel or of tbe clerk of said court, copy of calendars which might show said cause for trial, and no inquiry was made by tbe defendant or its attorney after tbe filing of tbe answer.

(5) Tbat within a few days after said action was tried, and upon notice thereof, and of tbe plaintiff obtaining said judgment, defendant promptly filed its motion to have said judgment vacated and set aside under C. S., 600; tbat bad said defendant, or its counsel, received notice of tbe calendaring of said action for trial they would have attended and defended said action; defendant’s counsel could have been reached by telegraph or telephone and would have attended within a few hours after notice and presented defense to said action.

(6) Tbe court further finds as a fact tbat tbe defendant’s answer sets out a good and meritorious defense to said action.

Tbe defendant, having employed reputable counsel, duly licensed by tbe Supreme Court to practice law in all tbe courts of this State, and having disclosed all tbe facts necessary to its defense, and said attorney having accepted employment by making an appearance in said cause, and by agreeing with tbe defendant to go to Cherokee County and represent defendant therein, and no negligence being disclosed on tbe part of tbe defendant, but it appearing that defendant bad done all tbat a reasonably prudent-minded person should have done.

Therefore, it is ordered and directed by tbe court tbat tbe judgment entered at tbe January Term, 1931, in said cause be, and tbe same is hereby vacated, annulled, and set aside, and a new trial of said action is ordered.

Witness Honorable J. H. Harwood, judge presiding, March-April Term, 1931, of said Superior Court. J. H. Harwood, Judge Presiding.”

J. D. Mallonee and Moody & Moody for plaintiff.

Hill & G-ray for defendant.

BeogkeN, J.

Tbe facts set out in tbe judgment bring tbe case squarely within tbe principles of law announced in Sutherland v. McLean, 199 N. C., 345. Tbe divergent views of tbe law upon tbe subject were fully set forth therein, and it is not deemed necessary to beat tbe same old brush with tbe same old stick to run out the same old rabbit for another chase.

Affirmed.

*142Stacy, C. J.,

dissenting: This case marks tbe extreme swing of tbe pendulum in tbe interpretation of C. S., 600. It carries Sutherland v. McLean, 199 N. C., 345, 154 S. E., 662, to its severest implications. My brethren and I have studied tbe same books and learned different lessons; read tbe same lines and construed them not alike. But, then, it is said: Times change and with them we change. Témpora mutcmtur, nos el mutantur in illis. This is true, but not all change is progress.

Tbe present decision is destined soon or late to be overruled, as it ought to be, or else silently to take its place among those cases which are consistently overlooked or forgotten, or, failing in both of these, it may continually rise up to plague the diligent practitioner. It certainly is at variance with the maxim “vigilantibus ei non dormientibus subvenit lex," so often quoted with approval in our Reports. Battle v. Mercer, 188 N. C., 116, 123 S. E., 258; Pierce v. Eller, 167 N. C., 672, 83 S. E., 758; School v. Peirce, 163 N. C., 424, 79 S. E., 687; Pepper v. Clegg, 132 N. C., 312, 43 S. E., 906; Sluder v. Rollins, 76 N. C., 271.

Without legislative sanction, it adopts the “Courtesy Rule of Practice in Mecklenburg” as the law of the State, and in a sense may be said to constitute a new “Declaration of Independence” for defendants. Heretofore it has been thought that the statute under review dealt.with the rights of litigants and not with the amenities of counsel. Manning v. R. R., 122 N. C., 824, 28 S. E., 963; Kerchner v. Baker, 82 N. C., 169; Waddell v. Wood, 64 N. C., 624. And see White v. Rees, 150 N. C., 678, 64 S. E., 777, followed by Hunter 4. R. R., 163 N. C., 281, 79 S. E., 610, where illness of counsel was held insufficient to establish “excusable neglect” under the statute. The law is the standard or jdumb line set in the midst of the people for their protection and guidance. It is essential that its application should be uniform. It cares for all sorts and conditions of men.

By comparison the following, first from McLeod v. Gooch, 162 N. C., 122, 78 S. E., 4, and, second, from Hamby v. Const. Co., 189 N. C., 747, 128 S. E., 146, though written only a short time ago, stand out in bold relief:

First, “A party has no right to abandon all active prosecution of his case simply because he has retained counsel to represent him in the court.”

Second, “We are not permitted to abandon the rules of practice, nor will they be construed so as to favor the negligent and penalize the .diligent party.”

To like effect are the numerous decisions collected in the dissenting opinion in the case of Sutherland v. McLean, supra.

The difficulty with the position of the majority is, that it overlooks the statutory rights of the plaintiff and creates a hiatus in the law. The *143plaintiff and bis counsel did all tbat tbe law requires of tbeni. Tbe clerk of tbe Superior Court of Cberokee County is guilty of no dereliction of duty. Tbe case was docketed and tried according to tbe usual course and practice of tbe court. No other practice prevails in Cbero-kee County, and yet tbe plaintiff is denied bis judgment, without fault on bis part, and without notice of any contrary mode of procedure existing elsewhere.

Tbe trial court finds tbat “defendant’s counsel could have been reached by telegraph or telephone.” Presumably like connection could have been bad in tbe opposite direction, and perhaps tbe defendant has a telephone in its place of business. But aside from this, tbe orderly processes of the law were duly followed by tbe plaintiff, bis counsel and tbe officers of the court. "Why bold tbe plaintiff to a practice of which be bad no knowledge and took no part in establishing, and at tbe same time grant to tbe defendant a privilege not accorded by law ? “Tbe employment of counsel does not excuse tbe client from proper attention to bis case.” Grandy v: Products Co., 175 N. C., 511, 95 S. E., 914.

Tbe defendant is not represented in this Court by tbe same counsel who filed its answer. 'Would it be possible, then, for it to defeat tbe rights of tbe plaintiff indefinitely by changing counsel from term to term? Note: Tbe practice in Mecklenburg, as appears from tbe record, is for tbe clerk to mail copy of calendar to nonresident counsel, not litigants.

A lawsuit is not a social function which is governed entirely by tbe rules of etiquette. Lex non fav'&t delicatorum voiis.

Tbe instant decision raises this question: Under tbe law as now written, when a defendant, duly served with process, employs a lawyer anywhere in North Carolina to look after bis defense, who simply files answer and does no more, can tbe plaintiff obtain a valid judgment in such ease without further notice to tbe defendant of tbe bearing?

Adams, J., concurs in dissenting opinion.