majority"> Ashe, J.

(after stating the facts). It is held that the spirit and equity of the provisions of §133 C. C. P., The Code §274, extend to this Court, and the same relief will be administered in like cases in this Court, as iu the Superior Court. Wade v. City of Newbern, 73 N. C. 318., Horne v. Horne, 75 N. C., 101. The question then is, do the facts set forth in the petition, constitute such a case as would entitle the petitioner to relief in. the Superior Court.

This Court, in several eases, has recognized adistinction between the negligence of an attorney and that of the parfy to the action» In the former case, it has been held that the omission of an attorney, retained as counsel in a cause, to perform his duty as such in the conduct of the cause is excusable neglect in the party, and the judgment may be vacated. This interpretation was first-given to this section of The Code, in the case of Griel v. Vernon, 65 N. C., 75. In that case, the party retained an attorney to enter a plea for him, which the attorney neglected to do, and it was held that the omission of the attorney to perform an engagement to do such an act as that, was a surprise on the client; and this case was followed by the cases of Bradford v. Coit, 77 N. C., 62. Mebane v. Mebane, 89 N. C., 34. Wynne v. Prairie, 86 N. C., 73, where the above cited cases are reviewed and approved — and in the more recent case of Ellington v. Wicker, 87 N. C., 14, in which the same distinction is recognized, and the case of Wynne v. Prairie, referred to with approval.

*567 If the neglect of an attorney in the Superior Court will excuse-a party, much more should it have that effect in the Supreme Court, for the parties to an action in the Superior Court, are required to be present in Court, and give their attention to their action ; but the parties to an appeal in this Court, are not required to be present, and, in fact, are rarely ever present. The entire management of the case after the appeal is taken, is necessarily entrusted to the counsel employed. He is expected to perform all the duties devolving by law upon an attorney in the management of the cause, and if in the progress of the cause,, necessity for the personal attention of his client should arise, it is his duty to communicate the fact to him, and his omission in this respect, should not be imputed to his client as inexcusable negligence. Here, the petitioner was a plain farmer, living at a distance from Raleigh. He had taken the pains to have his appeal perfected, and employed a gentleman of the bar, of high standing in his profession, who was in the habit of attending this-Court, and his attorney had promised him that he would attend to his interest in this Court; but his attorney for some reason,,, failed to attend the Court, and his appeal was dismissed for the want of printing the record, under a rule of this Court which-he had never heard of before.

We think these facts constitute a case of excusable negligence,, and his appeal ought-to be reinstated, and it is so ordered.

Motion allowed.

Citation profile

Relationships

How this case has been treated — in progress