
    OSBORN v. LEACH.
    (Filed November 17, 1903.)
    1. JUDGMENTS — By Default and Inquiry — Excusable Neglect — Affidavits — Findings of Court.
    
    On appeal from a refusal to set aside a judgment by default and inquiry on the ground oí excusable neglect, affidavits will not be considered; the findings of fact by the judge being conclusive.
    2. JUDGMENTS — Betting Aside — Excusable Neglect — Evidence—The Code, seo. 27^.
    The facts in this ease are not sufficient to justify the setting aside of a judgment by default and inquiry.
    3. JUDGMENTS — Betting Aside — Excusable Neglect — Meritorious Defense.
    
    A defendant against whom a default judgment has been taken is not entitled to have the default opened and judgment set aside merely because he has a meritorius defense, if his failure to assert it was not due to excusable neglect.
    
      4. OTUDG-MBNTS — By Default and Inquiry — Actions—Damages—Costs— Burden of Proof — The Code, see. 885.
    
    A judgment by default and inquiry merely admits a cause of action, and carries only nominal damages and costs; the burden of proving any damages beyond a penny being still upon plaintiff.
    A PetitioN to Rehear this case, reported in 132 N. 0., 1149.
    
      F. H. Busbee & Son and J. A. Bamnger, for tbe petitioner.
    
      J. T. Morehead. and King & Kimball, in, opposition.
   Clare, 0. J.

Tbis is a petition to' rebear tbis case, in wbicb tbe judgment belo-w was affirmed at tbe last term by a per curiam decision, 132 N. C., 1149. Per curiam decisions are made after as full consideration by tbe Court as those in wbicb opinions are filed, but tbe principles involved being’ well settled, it is not deemed necessary to duplicate reasons wbicb are to be found in other opinions.

On re-argument we see nO' reason to change our former conclusion. Tbis was an appeal from a refusal to set aside a judgment by default and inquiry on tbe ground alleged of excusable neglect. Tbe Code, sec. 214. The affidavits of both sides are sent up in tbe record, but improperly, for we cannot consider them, since tbe findings of fact by tbe Judge are conclusive on appeal. Norton v. McLaurin, 125 N. C., 185; Sykes v. Weatherly, 110 N. C., 131; Albertson v. Terry, 108 N. C., 75; Weil v. Woodard, 104 N. C., 94, and other oases cited in Clark’s Cbde (3 Ed.), p. 311.

Tbe facts found by tbe Judge are in substance: That tbe appellant and another, both living in Raleigh, were served in due time before Court with a summons in an action for libel returnable to June Term, 1901, of Guilford Superior Court. His co-defendant appeared by counsel, obtained extension of time for answering, and filed answer at tbe next succeeding term. The appellant made no appearance by attorney or in person, filed no answer or other pleading, and the plaintiff having filed a verified complaint took judgment by default and inquiry. When the summons was served upon the appellant he applied to a law firm in Ealeigh, who told him they did not attend regularly the Courts in Guliford, but advised him to employ another counsel, also residing in Ealeigh, who frequently attended the Guilford Courts, and the appellant did so, said counsel drawing a demurrer, which, according to his best impression, was, immediately upon being drafted, mailed to the Clerk of the Superior Court of Guilford, but whether addressed to J. N. Nelson (the name of such Clerk) said counsel is not certain, but he took the demurrer, stating at the time he would mail it, whereupon said law firm'told the appellant that as the case stood on a matter of law, it would not be necessary for him to go to Guilford Court till notified by counsel, as that docket was crowded and the case could not be reached in some time. The records of the Court fail to show any demurrer or other pleading having been filed by the appellant, and the Clerk has no recollection of ever receiving any by mail or otherwise. The Judge further finds that neither the law firm first employed by the appellant, nor the other counsel called in on their recommendation, attended Guilford Superior Court regularly, though the latter usually did so; that regular terms of the Superior Court were held in Guilford in June, August, September, October and December, 1901, and January, 1902, as provided by law, at none of which (six consecutive terms) any counsel for appellant was present. At the February Term, 1902, being the sixth term after that at which the judgment was taken, a motion to set it aside was made by a counsel resident in Greensboro, who was then first employed by the appellant. The appellant did not learn of the judgment by default and inquiry till said February Term, 1902, at which time, said counsel being confined to bis bed by illness, tbe appellant went to Greensboro in person and employed counsel there to move to vacate tbe judgment, and that tbe appellant bas a meritorious defense.

Upon tbe above facts bis Honor properly beld that tbe negligence of tbe appellant was not excusable. Tbis Court bas always beld that to bold a party excusable when bis counsel bas been negligent be must bave employed counsel “regularly attending the courf’ in wbicb tbe action is pending, or “who engages to go there specially to attend to tbe matter.” Manning v. Railroad, 122 N. C., 828. Here tbe Judge finds that neither of tbe counsel spoken to by tbe appellant regularly attended Guilford Superior Court, and neither engaged to go there to attend to filing tbe demurrer, for tbe client understood tbát tbe paper was to be sent by mail. Had tbe appellant employed counsel regularly attending that Court, or engaged counsel specially to attend June Term, 1901, such counsel would bave known that tbe demurrer was not filed, and could have filed it at any time up to tbe moment of adjournment, and tbis matter would not be now before tbe Courts. Tbe appellant bad ample time to get counsel in Greensboro (as be did later) or to employ counsel wbo would agree to go there, but be contented bimself with non-resident counsel promising to send a paper by mail and let bis case malee its own way in Cburt, like a log floating down a stream, without any attention or inquiry till tbe sixth term thereafter. Nor six terms be does nothing, bas no one regularly attending tbe Court (or agreeing to regularly attend it for tbis case) to give it attention for him, and then at tbe seventh term be interrupts the trial of other business wbicb bas been regularly attended to by asking the Court to relieve him from tbe consequences of bis negligence and a judgment by default and inquiry, wbicb bad been regularly taken in due course. Even if tbe appellant bad employed counsel regularly attending tbe Court, bis failure to pay any attention to tbe matter for so many terms was inexcusable. Whitson v. Railroad, 95 N. C., 385. Had be inquired be would have learned that none of bis counsel bad been to Greensboro, and that they knew no more about the status of bis case and whether or not the demurrer bad been filed than be did. The employment of counsel did not relieve him of all responsibility, but be must still “give it that attention which a prudent man gives to bis important business.” Sluder v. Rollins, 76 N. C., 271; Roberts v. Allman, 106 N. C., 391, cited with approval in Pepper v. Clegg, 132 N. C., 315. Failure of a party to attend Court because be knew nothing personally about the cause of action and “because bis counsel knew of bis defense” was held not excusable neglect. Waddell v. Wood, 64 N. C., 624. “A defendant does not abandon all care of bis case when be has engaged counsel to look after it.” Roberts v. Allman, supra; Henry v. Clayton, 85 N. C., 371; Vick v. Baker, 122 N. C., 98. Those were all cases where counsel were actually present at the Court. Here the appellant not only bad no counsel there and knew that the counsel be retained did not expect to attend the June Term, for the demurrer was to be sent by mail, but makes no inquiry and learns nothing of the fate of bis case till the seventh term. Had be even made inquiry after June Term was closed be would have found that the demurrer bad not been filed and that judgment by default and inquiry bad been taken, and if be bad moved at August Term, at which term the plaintiff bad agreed that the other defendants should file answer, it is probable no objection would have been made to striking out the judgment and giving the appellant the same favor. The fact that the appellant has a meritorious defense has no effect, if bis failure to assert it at the proper time was not due to excusable neglect, for it is only when there is excusable neglect shown that it must further appear that the defendant has a meritorious defense. Turner v. Machine Co., at this term.

Fortunately, however, for the defendant, the judgment by “default and inquiry” carries only a judgment for penny and costs. Such judgment, says 2 Blade on Judgments, sec. 698, “merely admits a cause of action, while the precise character of the cause of action and the extent of the defendant’s liability remain to be determined by a hearing in damages and final judgment thereon; the cause of action is not merged in the judgment, and the rights of parties, beyond the mere admission of a cause of action, are neither strengthened nor impaired thereby.” Welch v. Wadsworth, 30 Conn., 149; 79 Am. Dec., 239. Our own decisions hold to the same effect that a judgment by default final under The Code, section 385, admits the allegations of the complaint, but a judgment by default and inquiry admits only a cause of action and carries only nominal damages and costs, the burden of proving any damages beyond a penny being still upon the plaintiff. Parker v. Smith, 64 N. C., 291; Parker v. House, 66 N. C., 374; Rogers v. Moore,, 86 N. C., 85; Anthony v. Estes, 101 N. C., 541.

Petition dismissed.  