Manning v. Roanoke & Tar River Railroad

Citations

• 28 S.E. 963
• 122 N.C. 824
• 1898 N.C. LEXIS 360

Syllabus

<p>Practice■ — Service of Process — Amendment of Return— Attorney — Laches—Failure to File Answer — Judgment by Default — Appeal—Motion to Dismiss.</p> <p>1. Where a summons has been properly served, the return may be amended to show that the deputy officer making the service had been duly appointed by the sheriff; and the defendant cannot be prejudiced by such amendment.</p> <p>2. A non-resident attorney does not acquire the right to practice habitually in the Courts by having been previously allowed, by courtesy of the Court, to appear in special cases.</p> <p>3. A party will be held excusable for relying upon the diligence of counsel, who has been neglectful, only when it appears that he himself has not been neglectful, but has given all proper attention to the litigation.</p> <p>4. If a party seeks to be excused for laches on the ground of his counsel’s neglect, he must show that the counsel employed is one who regularly practices in the court where the litigation is pending, or, at least, one who is entitled to practice therein, and who specially engaged to go thither and attend to the case.</p> <p>5. If a party employs counsel whose duty is not to attend to the case himself but merely to select counsel who will do so, the first named counsel is, pro hoc rice, an agent merely, his duty not being professional, and his neglect is the neglect of the party himself and not excusable; hence,</p> <p>6. Where a railroad company had a general counsel residing in another State and not entitled to practice regularly iii the courts of this State, and whose duty it was to employ local counsel to attend to an action brought against the company, and through the neglect of the “general counsel” the answer to the complaint was not filed in time; Held, that the defendant company is not excused by such neglect.</p> <p>7. The fact that a defendant has the right to take advantage of the plaintiff’s failure to file a complaint within the first three days of the return term, does not