CLEGG EX R. v. THE NEW YORK WHITE SOAP STONE Co. J. N. CLEGG, Ex'r. vs. THE NEW YORK WHITE SOAP STONE COMPANY. The Supreme Court has a right to review the ruling of a Judge below, upon a motion to set aside a judgment. When a defendant moved to vacate a judgment, upon the ground of excusable neglect, and the excuse assigned was, that his counsel, by mistake, had misinformed him as to the time of holding the Court, whereby he failed to file an answer; Held, that the excuse for not filing the answer was not sufficient, when the facts show, that the defendant did not suffer harm by the mistake of his counsel. When the Court below refused a party permission to file an answer at a term subsequent to the time allowed by a former order, the appellate Court must assume that the question of "excusable neglect" was passed upon. If the party was dissatisfied with the ruling, he had a right to appeal, and it was his duty to do so, for a motion to vacate is not a substitute for an appeal, but a relief against accidents. This was a motion to vacate a judgment upon the ground of "excusable neglect," heard before Tourgee, J., at Spring Term, 1872, of CHATHAM Superior Court. The motion in the cause was made at Fall Term, 1871, at which term his Honor denied the motion and refused to vacate the judgment. From this judgment there was an appeal to the Supreme Court, and the case was heard at January Term, 1872. See 66 N. C. R. 392. The cause was remanded that the jury might find the facts upon which the judgment was based. At the last term of Chatham Superior Court, the motion was renewed. The facts were found by his Honor, and he again refused to set aside the judgment. From this judgment there was an appeal to the Supreme Court, The facts found by the Judge below are sufficiently stated in the opinion of the Court. CLEGG, EX'R. v. THE NEW YORK WHITE SOAP STONE Co. London and Phillips & Merrimon, for plaintiff. READE, J. The facts found by his Honor are, that Fall Term, 1870, was the return term, and that the defendant appeared by counsel and moved for time to answer; and time was granted him until 4th March, 1871. That no answer was filed within the time, and that at Spring Term, May 1871, the defendant appeared by counsel and requested a copy of the complaint, and immediately upon its being furnished, he offered to file the answer. The Court refused to allow the answer to be filed, and gave judgment for the plaintiff. At Fall Term, 1871, there was a motion to vacate the judg ment, for the reason that the neglect of the defendant to file his answer was excusable under C. C. P. 133. The excuse assigned was, that the counsel, by mistake, had misinformed his client as to the time when the Court would be held. Suppose the facts were sufficient to excuse the defendant for not filing his answer at the return term, 1870, (if that was the term as to which he was misinformed), he did not suffer by it, because he was allowed time until 4th March, 1871. If Spring Term, 1871, was the term as to which he was misinformed, (it is left uncertain which was the term), still his mistake did him no harm, because it was not at that term, but on the 4th of March previous that he was to file his answer. So that, we agree with his Honor that the neglect to file his answer on or before 4th March, 1871, has nothing to excuse it. It is however insisted, that it was the duty of the plaintiff, not only to file his complaint, as he did do, at or before the return term, but it was also his duty to furnish the defendant with a copy. This is true; but still, we agree with his Honor that the defendant waived his advantage by not taking the objection at the appearance term, and by appearing and taking time to file his answer. CLEGG, EX'R. v. THE NEW YORK WHITE SOAP STONE Co. But there is another view which is tatal to the defendant's motion. At Spring Term, 1871, when the Court refused to allow the answer to be filed, we are to assume that the ques. tion of "excusable neglect" was passed on. If the defendant was dissatisfied with the ruling, he had the right to ap peal, and it was his duty to do so; for the motion to vacate, C. C. P. 133, is not a substitute for an appeal, but is a relief against accident. And as was said by us in Waddell v. Wood, administrator, 64, N. C. 624, it is not to be tolerated in the most liberal practice that a party is to lie by and let judgment pass, when he might appeal, and at a subsequent term move to vacate. I take this occasion to remove a doubt which I expressed in a dictum in the case of Waddell v. Wood, adm. supra, as to the power of this Court to review the ruling of a judge below upon a motion to vacate, whether it was not exclusively within the discretion of the Judge. We have since held that we can review him; and I regard it as settled. No error. PER CURIAM. Judgment affirmed. MAXWELL v. HOUSTON, ADM'R. ELIZABETH A. MAXWELL 08. WM. M. HOUSTON, Adm'r. Where a horse was placed by A in the possession of B, with an understanding that he was to be worked for his food, and was to do the plowing and milling for A, and A was to use the horse when she wanted him; Held, that this is a contract of bailment, and is governed by the general principle that a builee cannot dispute the title of his bailor. When an administrator converts property he is a wrong doer, although he obtained possession by act of law; and he cannot be heard to dispute the title of the bailor of his intestate. [Craig v. Miller, 12 Ired. 375, cited and approved.] CIVIL ACTION to recover damages for the conversion of a horse, &c., tried before Buxton, J., at Fall Term, 1871, of UNION Superior Court. Elizabeth Maxwell, the plaintiff, was examined as a witness and testified that the horse in controversy was in the possession of Green W. Houston when he died; after his death, the defendant, who was administrator, told witness to come over to his house, and he would give up all her property in his possession. Witness went and wanted the horse, cow and calf he had taken home. He refused to give them up, but sold them in Novem. ber, 1865. Witness forbade the sale. Upon cross examination, she stated that she got the horse in 1854 or 1855 from Miles Lemmon; and that her son traded her horse for the one in controversy, when it was six months old .That her son died intestate and no one administered on his estate. Witness paid George W. Houston for wintering her colt. Mr. Houston got the horse from her when he was two years and a half old. He worked him for his food, and was to do the plowing and milling for the witness, and she was to use the horse when she wanted him. Witness stated further, that her son claimed the colt as his That she never sold it or received any thing for it. It own. MAXWELL. HOUSTON, ADM'R. was in proof that George W. Houston, the intestate, admitted in 1865, that he was keeping the horse for its feed. Exception was taken to the examination of plaintiff as a witness. The exception was overruled by his Honor. The exception is not set out fully, as it is not noticed in the opinion of the Court. His Honor was asked to charge the jury, that plaintiff was not entitled to recover damages for the conversion of the horse, as she had proved that it belonged to her son, who had died intestate, and no one had administered on his estate. That the horse was the property of the administrator when such was appointed, and that until then the possession of plaintiff was not adverse. His Honor declined so to charge, and told the jury that if the plaintiff had obtained the horse in the manner stated by her, and had kept it, as she swore she had, that, for all the purposes of this action, it was her property and she was entitled to recover damages for the conversion. Defendant's counsel excepted. There was a verdict for the plaintiff. Rule for new trial. Rule discharged. Judgment and appeal. Phillips & Merrimon, for plaintiff. J. II. Wilson and Blackmer & McCorkle, for defendant. READE, J. The relation which subsisted between the plain tiff and the intestate of the defendant was that of bailor and bailee, and was governed by the general principle that a bailee is estopped from denying his bailor's title. When the defendant converted the horse and other articles he became a wrong doer, although he came to the possession by the law, and he cannot be heard to dispute the title of the plaintiff. For this, the case of Craig v. Miller, 12 Ire, 375, is authority. There is no error. PER CURIAM. Judgment affirmed. |