Jones v. STATESVILLE ICE AND FUEL COMPANY

130 S.E.2d 324 (1963)

259 N.C. 206

Allen Lane JONES v. STATESVILLE ICE AND FUEL COMPANY, Inc., Vance A. Martin, and Joseph John Valletta.

No. 309.

Supreme Court of North Carolina.

April 10, 1963.

*326 McElwee & Hall, North Wilkesboro, for defendant appellant.

Corne & Warlick, Newton, for plaintiff appellee.

DENNY, Chief Justice.

The question presented for determination on this appeal is whether a judgment by default and inquiry should be set aside for excusable neglect where the defendant turned the entire responsibility of handling the defense of a law suit over to his wife upon her assurance that she would look after it, but neither the defendant nor his wife did anything about the matter until after the judgment by default and inquiry had been entered.

It is provided in G.S. § 1-220, in pertinent part, as follows: "The judge shall, upon such terms as may be just, at any time within one year after notice thereof, relieve a party from a judgment, order, verdict or other proceeding taken against him through his mistake, inadvertence, surprise, or excusable neglect, and may supply an omission in any proceeding. * * *"

It is generally held under the above statute that "(p)arties who have been duly served with summons are required to give their defense that attention which a man of ordinary prudence usually gives his important business, and failure to do so is not excusable." Strong, North Carolina Index, Judgments, section 22; Whitley v. Caddell, 236 N.C. 516, 73 S.E.2d 162; Pate *327 v. Hospital, 234 N.C. 637, 68 S.E.2d 288; Whitaker v. Raines, 226 N.C. 526, 39 S.E.2d 266; Johnson v. Sidbury, 225 N.C. 208, 34 S.E.2d 67.

Where a defendant engages an attorney and thereafter diligently confers with the attorney and generally tries to keep informed as to the proceedings, the negligence of the attorney will not be imputed to the defendant. If, however, the defendant turns a legal matter over to an attorney upon the latter's assurance that he will handle the matter, and then the defendant does nothing further about it, such neglect will be inexcusable. Moore v. Deal, 239 N.C. 224, 79 S.E.2d 507; Pepper v. Clegg, 132 N.C. 312, 43 S.E. 906.

The evidence in this case tends to show that the defendant, after having been served with summons and a copy of the complaint, turned the defense of the law suit over to his wife who, according to her affidavit, had never been involved in a law suit and therefore had no experience in such matters. According to the appellant's affidavit, when he turned the suit papers over to his wife, he "dismissed the matter from his mind; that the wife of * * * affiant placed the papers in a drawer and they did not cross her mind again until she and this affiant were advised some months later that a judgment by default and inquiry had been obtained against him * * *."

In Stephens v. Childers, 236 N.C. 348, 72 S.E.2d 849, it is said: "The rule is established with us that ordinarily the inexcusable neglect of a responsible agent will be imputed to the principal in a proceeding to set aside a judgment by default. Stallings v. Spruill, 176 N.C. 121, 96 S.E. 890." See Greitzer v. Eastham, 254 N.C. 752, 119 S.E.2d 884, and cited cases.

The appellant contends that he is entitled to have the default judgment entered below set aside on authority of Abernethy v. Nichols, 249 N.C. 70, 105 S.E.2d 211. In the Abernethy case the debt out of which the cause of action arose was incurred in the course of business dealings between the plaintiffs and the husband of Mrs. Nichols. Mrs. Nichols did not enter into and had no connection whatever with the contract sued upon in the action. When process was served on Mrs. Nichols, she inquired of the other defendant, her husband, as to why and for what reason she had been sued; her husband advised her to give the legal papers to him and he would relieve her of responsibility in the matter. The husband allowed a default judgment to be entered. Upon motion to set aside the default judgment the court found that her failure to file answer was excusable in light of the assurance of her husband that he would be responsible and would assume the defense of the action. On appeal we affirmed on authority of Wachovia Bank & Trust Co. v. Turner, 202 N.C. 162, 162 S.E. 221; Sykes v. Weatherly, 110 N.C. 131, 14 S.E. 511 and Nicholson v. Cox, 83 N.C. 48.

The above-cited decisions are to the effect that where a husband and wife are jointly sued, the wife may rely upon her husband's promise to employ counsel and file answer; that her neglect to file an answer to the complaint because of her reliance on her husband to do so, is excusable. Connor, J. pointed out in Wachovia Bank & Trust Co. v. Turner, supra, that "C.S. § 2507 (now G.S. § 52-2), known as the Martin Act, does not affect, or purport to affect, the relation of husband and wife, or their mutual rights and duties growing out of the marital relation."

We find no case in which it has been held that a husband, when served with process in a civil action, may rely on his wife to assume the responsibility of filing answer and defending the suit.

This Court said in Nicholson v. Cox, supra: "Manifestly, it was not expected that the wife, though capable to represent herself in a suit against her, would as a general thing exercise that power, but would commit the management and direction of her defense to the intervention and judgment of her husband. In legal contemplation *328 she would be inclined to trust, and could trust, her interests in any adversary suit to her husband."

In our opinion, when the defendant turned the suit papers over to his wife, and thereafter made no inquiry as to whether or not anything had been done with respect thereto, his wife's neglect was imputable to him, and no excusable neglect has been shown by the appellant. Moore v. Deal, supra.

Moreover, the motion to set aside the default judgment was denied in the court's discretion. Such decision will be upheld in the absence of an abuse of discretion.

We think there was plenary evidence to support the decision of the court below and that appellant's motion to set aside the default judgment was properly denied.

Affirmed.