Waddell v. . Wood
Supreme Court of North Carolina
Motion to set aside a judgment given at Fall Term 1869, heard by Mitchell, J., at Spring Term 1870, of Iredell Court. Tbe facts appear in tbe Opinion.
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Motion to set aside a judgment given at Fall Term 1869, heard by Mitchell, J., at Spring Term 1870, of Iredell Court. Tbe facts appear in tbe Opinion. His Honor refused to make tbe desired order, and tbe defendant appealed. 1. Tbe power given in O. C. P. s. 133, to set aside a judgment, is discretionary, and so cannot be reviewed by appeal: Simonton v. Ghipley, ante, 152. 2. Tbe defendant ought to have been present, to see what became of bis case: Staples v. Moring, 4: Ire. 218.
1Opinion of the CourtEeade, J.
Tbe defendant seeks to vacate a judgment rendered against him at a former term of tbe Court, on tbe ground of excusable neglect, in this: be expected bis witness, who bad been summoned and bad attended a former term, would attend at tbe trial, and be did not think it necessary to attend in person, because bis counsel knew of bis defence. Every suitor ought to be present at tbe trial of bis case, either in person or by an attorney in fact, and wilful absence is not “ excusable neglect.” The fact that he has .counsel present does not alter the case, for it is no part of the duty of counsel to…
2Cases cited1 opinion
- Dick v. . DicksonSupreme Court of North Carolina · 1869
3Cited by15 opinions
- Pepper v. Clegg.Supreme Court of North Carolina · 1903
- Governor Ex. Rel. Trustees of University of N. C. v. LassiterSupreme Court of North Carolina · 1880
- Griel v. . VernonSupreme Court of North Carolina · 1871
- Sluder v. . RollinsSupreme Court of North Carolina · 1877
- Osborn v. . LeachSupreme Court of North Carolina · 1903
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