(dissenting): This was a motion to set aside a judgment for excusable neglect. An agreement of counsel is filed, and thereby made a part of the case on appeal, which recites that the Judge did not base his ruling upon his discretion, but held, as a matter of law upon the facts found, that the defendant was entitled to have the judgment set aside. Prom the facts found, it appears that the summons was *476served on the defendant at Goldsboro on July 7th, return able to Duplin Court, which began August 3d; that on Tuesday, August 4th, the complaint was filed; that the Court adjourned in the afternoon of Thursday, August 6th ; that no answer having been filed, a judgment by default and inquiry was entered; that the defendant did not select a counsel to represent it at such Court till that very day, and then chose one fifty miles away, instead of some lawyer in the county or at the Court, who, if selected, even at that late day, could have been reached and instructed by telegraph. It is hard to see how it could be held, as a matter of law, that this entitled defendant to have the judgment set aside.
The law requires the summons to be served ten days before Court, to give the party time to employ counsel and instruct him as to his defence. This defendant was served twenty six days before Court met, and thirty days before (he judgment was taken. If its agents were negligent in securing counsel, that - has been always held by this Court to be the negligence of the defendant. Finlayson v. Accident Association, 109 N. C., 196, and cases there cited. It appears in “ the facts found,” that the agent on whom the summons was served at Goldsboro on July 7th, sent it to another agent (as required by defendant’s “ regulations” in such cases) at Atlanta, Georgia; that the head agent there delivered it to another General Agent in that place, who, after a delay (not attempted to be accounted for) of ten days, sent it on July 18th to another representative of the defendant at Greensboro, who, by mistake (whether excusable or not is not explained), sent the papers — it does not appear that there was anything more than the simple summons — to another General Agent in South Carolina; that by this latter,on July 20th, the papers were sent back to the company’s representative at Greensboro, but by “some mischance” (as to which general expression no facts are found) *477they were not delivered till August 4th, though it is found that the transmission was not by United States mail, but by the hands of another agent of the defendant. It is stated that being sick that day, the representative of the company on the next day, August 5th, sent the papers to another general representative living in Raleigh, It does not appear whether the latter was to act as counsel, or was ánother supervising agent to select counsel; but however that may be, he was not in Raleigh, and the telegraph being then first resorted to by still another agent, the general representative at Greensboro is advised of such fact. And then, sometime on Thursday, August 6th, after the adjournment of Court (for it is found as a fact “the Court had adjourned the same day”), counsel for the first time is asked to appear, and he not at the county seat where the case is pending, but fifty miles away. During the thirty days which had elapsed since service of process, the matter had been in the hands of nine different agents of the defendant that we know of, and at last the counsel selected was the regular counsel of the defendant in the same town of Goldsboro in which the summons had been served a month before. That some of these general agents were gentlemen of high distinction and lawyers of eminent ability, did not in my judgment justify the Court below in holding, “as a matter of law,” that neither they nor any of the other numerous agents had not been guilty of inexcusable negligence.
Thesimplesummons, giving notice that the defendant should appear and answer the complaint of the plaintiff, which would be filed on the first three days of Duplin Superior Court, which would begin oh August 3d, and in default thereof that this very judgment, by default, would be taken, had been served in Goldsboro, had been sent “ by regulations ” of the defendant from one of its agents to another through three Statés, from point to point, from office to office, with no legal explanation of a single day’s delay, and we are asked to say, *478as a matter of law, that sucli negligence was excusable. That some of these agents were counsel (if the negligence was indeed theirs, and'not that of some other of the agents who had the handling of this document), does not alter the fact that the negligence of a lawyer, who is not to appear in the cause himself, but is to employ other counsel, is the negligence of an agent pro hac vice, and that his neglect is the neglect of the defendant. The Court so held at last term in Finlayson v. Accident Association, 109 N. C., 196, and that case cites several precedents in this Court to the same effect. The ten days’ delay of the summons in Atlanta, Georgia, from July 8th to 18th, is prima facie neglect, and no facts are found to excuse it. If the other twenty days are accounted for, there would still be inexcusable neglect. That the defendant’s agent in South Carolina chose to send the papers by another agent of the company to its general representative in Greensboro, on July 20tb, and that they were not received there till August 4th, “by some mischance,” is prima facie negligence, at least of the intermediary agent, and being unaccounted for, and no inquiry made for the missing paper; it is difficult to see how, as a matter of law, it can be held that the defendant was not liable for such neglect of its agent. Churchill v. Insurance Co., 92 N. C., 485; Boing v. Railroad, 88 N. C., 62. Again, when the papers were received by the defendant’s representative at Greensboro on August 4th, he knew from the face of the summons itself that Duplin Court had then been in session two days. He wrote a letter lo the representative in Raleigh, who being a prominent lawyer in large practice, could not be expected to be always at home. Use of the telegraph instead of the mail would have brought that information, and a telegram to the counsel finally employed at Goldsboro could, have been sent Wednesday morning in full time for counsel to have attended, if indeed, the Court being in session, the telegram, in view of previous delays, should not have been sent direct, on Wednesday, to *479some counsel in Duplin. Such counsel could have been instructed by telegraph as to the answer, or the defendant could, at least, have shown diligence by laying the facts before the Court and applying for time. The failure, under the circumstances, to use the telegraph, was inexcusable neglect. Bradford v. Coit, 77 N C., 72: Finlayson v. Accident Association, supra. The Court was a one week’s term. The complaint was filed on Tuesday. The answer certainly could have been filed before adjournment on Thursday, which was no “ surprise,” and not unusual in practice. To hold such adjournment to be “legal surprise,” would render judgments by default invalid in all cases except where the. Court has business to occupy it the full term. There can be no pretence that there was not ample time in which to file the answer, as could legally have been done at any moment of the forty-eight hours which elapsed between the filing of the complaint and the judgment of Court, in the regular course of business, on Thursday afternoon. The true reason why the answer was not filed is not this at all, but because the defendant had no attorney, and did not secure one till that day, and after the adjournment of the Court, and he many miles away from the place where the Court was being held. It w'as the duty of the defendant to take notice of summons and process served upon it, and when its failure to do so was caused by the negligence of its agents, it became liable to a judgment by default, like anyone else. The plaintiff, it is true, was entitled to three days to file his complaint. This was a privilege. He was not compelled to wait that long. When he filéd his complaint on Tuesday, the defendant having been put in Court by service of summons, was fixed with notice. It then became its duty to file its' answer before Court adjourned. There were forty-eight hours in which to do so between-the time the complaint was filed and the adjournment of the Court. It is not found, or even suggested, that the defendant could not then have filed its answer before the *480adjournment, as doubtless all other litigants at that term did. Bu,t if it could not, it was inexcusable neglect that the defendant did not have counsel there to apply to the Court for an extension of time, which the Court had the discretion to grant, and doubtless would have granted in a proper case. Piad the defendant been a citizen of Duplin, and waited thirty days after service of process, and two days after complaint filed, and not employed counsel till the day Court adjourned, and after its adjournment, and then employed one not attending the Court, but fifty miles away, would not this have been-inexcusable neglect, and does not the same rule apply to the defendant here? The fact of its being a non-resident of the county could make no difference after summons actually served.
Amid all this commotion, and marching and counter-marching of this mere copy of a summons, there is danger of forgetting that there is a plaintiff who, ordinarily, would have the legal right to a judgment by default, if the defendant paid no attention to the action after having been served with summons ten days before Court. That the defendant chooses to do its business in this way, is a matter of which no one can complain. If it wishes to enjoy the luxury of a “ circumlocution office,” it has a right to do so. But when it seeks to have it held “as a matter of law” that the use of such methods is excusable neglect, and that the plaintiff must yield his rights, and the Courts conform their procedure to the defendant’s peculiar method of taking thirty days to get notice of the summons, served on the defendant in Goldsboro, to its counsel living in Goldsboro, neither reason or precedent can be found to support the position. The delay of thirty days to procure counsel after service of summons is inexcusable neglect. It was the neglect of some' agent or agents of the defendant. It is not so difficult to find a lawyer to represent any defendant that more than thirty days was required here, -when the law allows only ten *481days for that purpose to other defendants. The neglect of the defendant’s agents was its neglect. It is immaterial which one of the agents was responsible for it. Their aggregate neglect was at the door of the defendant. It had the selection of its own agents. If the fault, as is probable, was in the peculiar “regulations ” of the defendant, it is the negligence of the corporation that it has such. It cannot ask that, therefore, the Court should construe the law differently as to it from the rulings heretofore made in numerous cases. The Court say, in Sluder v. Rollins, 76 N. C., 271, that “the least that can be expected of a person having a suit in Court is that he shall give it that amount of attention which a man of ordinary prudence usually gives to his important business,” and that a failure todo so is inexcusable neglect. Kerchner v. Baker, 82 N. C., 169. Sluder v. Rollins has been cited and approved, also in Hodgin v. Matthews, 81 N. C., 289; Cobb v. O’Hagan, Ibid, 293; University v. Lassiter, 83 N. C., 38; Henry v. Clayton, 85 N. C., 371; Depriest v. Patterson, Ibid, 376; Churchill v. Insurance Co., 88 N. C., 305; Roberts v. Allman, 106 N. C., 391. The attention given this case by the agents of the defendant was not such as “ a prudent man would give his important business.” That the neglect here was that of agents, gives the defendant no greater privilege than an individual, as a corporation must necessarily act through agents, and their neglect is the neglect of the corporation. In no aspect is this case as strong for the defendant as in Churchill v. Insurance Co., 92 N. C., 485 (which is more nearly like it than any other), where the Court say the facts were not sufficient legal excuse which should be allowed to deprive the plaintiff of his legal rights in the premises. If this state of facts constitutes excusable neglect,it would be difficult to conceive any possible combination of circumstances under which this defendant could be guilty of inexcusable neglect, unless it be that the “regulations” of the defendant might possibly have required this copy of a summons to be submitted to the *482scrutiny and gaze of a still greater number of its representatives in a greater number of cities and States.
It would seem that amid the “ numerous and multitudinous” handlings of this summons for thirty days by so many agents, that the defendant should be fixed with notice of its contents, and of the place and time where and when it should appear, and of the notice therein that if it did not this judgment would be entered, and that it was inexcusable that it did not pay enough regard to it to employ counsel. I cannot concur in the ruling below that the whole thing was in law “ an unavoidable accident.”
The defendant’s contention that the case should be tried by a jury, and not upon a technicality, if logical, would, by a judicial construction, abolish all judgments by default (if such judgments can be called a technicality). The statute gives the plaintiff a legal right to have such judgment when the defendant neglects in apt time to put in his defence. If such judgments can always be struck out as of right, defendants could always obtain delay by showing a contemptuous disregard of the process of the Court, or neglecting to answer the complaint till it suited their convenience. In truth, in law and in reason a judgment by default is as valid as any other, and can only be set aside when the failure to answer in apt time was not caused by the negligence of the defendant or its agents. The rule that where the negligence is that of counsel the defendant can have the judgment set aside is a matter of grace, and has never been extended beyond the negligence of the counsel actually appearing in the cause, and not even that far unless the defendant was diligent, and himself without laches. Bradfort v. Coit, 77 N. C., 72; Roberts v. Allman, 106 N. C., 391. It is true, if defendant had employed counsel in time, he might have been negligent in putting in the answer in time, and the defendant usually w'ould be excused, but it is a non sequitur *483that therefore the defendant’s negligence in not employing counsel in time is excusable.
Whether the facts found constitute excusable or inexcusable neglect, is subject to review. Our decisions are uniform that, if there is excusable neglect, the Court, in its discretion, may grant, or not, the motion to set aside the judgment. But if the neglect is inexcusable, it cannot set it aside. I think the Court below erred — (1) in not holding the neglect inexcusable; (2) if it had been excusable neglect, in holding that, as “a matter of law,” the judgment should be set aside. It would, in that case, have been matter of discretion.
Upon the findings, in any aspect of them, the defendant is not entitled to have the default set aside, for it is not found that it has a meritorious defence. Bank v. Foote, 77 N. C., 131. It is not entitled to have the case sent back to have an express finding on that fact. Not having been found, it is to be deemed not to exist.
It is said by Ashe, J., in Churchill v. Insurance Co., 88 N. C., 205: “ A party seeking to vacate a judgment under section 133 (now 274) of The Code is always at default, and the onus is upon him to show facts which would make the refusal to vacate an abuse of discretion. Kerchner v. Baker, 82 N. C., 169.”
I think the ruling below should be reversed, and the case sent back, that the plaintiff should execute his inquiry before a jury at the next term, according to the regular procedure of the Courts.
Per curiam. Affirmed.