Gaster v. Goodwin

139 S.E.2d 716 (1965)

263 N.C. 441

John GASTER v. Leamon GOODWIN, Layton Denson, Individually and trading as Apex Taxi Company, and Hubert E. Gaster.

No. 469.

Supreme Court of North Carolina.

January 15, 1965.

*717 Manning, Fulton & Skinner, Raleigh, for plaintiff appellant.

Dupree, Weaver, Horton & Cockman, Jerry S. Alvis, Raleigh, for defendant Denson.

DENNY, Chief Justice.

In remanding this case at the Spring Term 1963 for further hearing, this Court, speaking through Moore, J., said: "It appears to us that the crucial point in this case has not been considered. If Denson over the ten year period was in contact with his attorney at reasonable intervals, observed and learned nothing which would put him on notice that the attorney was incapacitated to present his defense, and was assured that his case would be attended to and he would be notified when needed, the court may find that Denson was not in default. On the other hand, if Denson knew that his attorney was not capable of handling his business, or by inaction and inattention neglected to discover the incapacity of his attorney which had existed over a long period of time, he may not claim the benefit of the statute unless there are other considerations, not appearing on the present record, which might excuse him. There is also the question whether, if Johnson was incapacitated, this fact was known to plaintiff or his attorneys and they failed to so inform the court."

The decisions on the subject now before us, as we have heretofore pointed out, are not entirely satisfactory with respect to their consistency. In fact, many of them are irreconcilable. Brown v. Hale, 259 N.C. 480, 130 S.E.2d 868. Even so, the general rule seems to be that when a defendant employs reputable counsel and gives him the facts constituting his defense, and the lawyer has prepared and filed an answer, if a judgment is obtained due to the negligent failure of the attorney to appear and defend the cause when called for trial, the client may have the judgment set aside for surprise and excusable neglect. Gaster v. Goodwin, 259 N.C. 676, 131 S.E.2d 363.

The court below, in pertinent part, found the following facts:

(1) That defendant Denson did in apt time employ a duly licensed and qualified attorney to represent his interest; that he communicated to his attorney all those matters and things relevant to his defense in this action; that he relied in good faith upon his attorney's representation that he would attend to his defense and notify him whenever necessary of all proceedings.

(2) That his attorney did file answer to the complaint in apt time and that the answer of record sets out a good and meritorious defense based upon contributory negligence and lack of responsibility under the doctrine of respondeat superior.

(3) That this case was continued from term to term and did not come on for trial for almost eleven years.

(4) That defendant Denson had no notice of the trial and hence was given no opportunity to present his good and meritorious *718 defense; that in his absence and without his knowledge, he having received no court calendar, correspondence or call from his attorney of record, or any other person, court or attorney, of the pendency of the trial, a judgment was entered against him.

(5) That defendant Denson was in contact with his attorney on many occasions and at frequent intervals during the ten-year period beginning with the employment of his attorney and ending with the filing of judgment against him.

(6) That no evidence has been presented to this court which would indicate that defendant Denson was or should have been put on notice that his attorney was incapacitated to present his defense.

Upon the foregoing findings of fact, the court below ordered, adjudged and decreed that the judgment entered 10 October 1958, in the Superior Court of Wake County, be set aside and this cause reinstated on the trial docket.

The findings of fact by the judge below, in our opinion, were supported by competent evidence and must, therefore, be upheld. Hertford Livestock & Supply Co. v. Roberson, 245 N.C. 588, 96 S.E.2d 734; Moore v. Deal, 239 N.C. 224, 79 S.E.2d 507.

Notwithstanding the findings of fact by the court below, the plaintiff contends the judgment entered on 10 October 1958 cannot be set aside because the motion to set aside such judgment was not made within twelve months of its entry, but, instead, was made on 10 August 1962, about three years and ten months after its entry.

The plaintiff contends that where a person is personally served with summons and judgment is taken, the motion to set aside the judgment must be made within one year after the rendition of the judgment, citing McDaniel v. Watkins, 76 N.C. 399; McLean v. McLean, 84 N.C. 366; Roberts v. Allman, 106 N.C. 391, 11 S.E. 424; Lee v. McCracken, 170 N.C. 575, 87 S.E. 497; Jernigan v. Jernigan, 178 N.C. 84, 100 S.E. 184, and similar cases.

In each of the foregoing cases the respective defendants were personally served with process and failed to answer or take any effective steps to protect their interest. We think there is a valid distinction between this class of defendants and the defendant in the instant action, where he employed counsel, gave him the facts necessary upon which to file an answer and set up a meritorious defense, kept in touch with counsel, and was assured he would be notified when the case was set for trial. In view of these facts, we hold that defendant Denson's motion to set aside the judgment entered on 10 October 1958, in the Superior Court of Wake County, was in apt time when made within twelve months from the date of actual notice of the entry of the judgment. G.S. § 1-220; Industrial Loan & Thrift Corp. v. Swanson, 223 Minn. 346, 26 N.W.2d 625; Kaplan v. Radford, Sup., 161 N.Y.S. 374.

The judgment of the court below is

Affirmed.