dissenting: This case marks tbe extreme swing of tbe pendulum in tbe interpretation of C. S., 600. It carries Sutherland v. McLean, 199 N. C., 345, 154 S. E., 662, to its severest implications. My brethren and I have studied tbe same books and learned different lessons; read tbe same lines and construed them not alike. But, then, it is said: Times change and with them we change. Témpora mutcmtur, nos el mutantur in illis. This is true, but not all change is progress.
Tbe present decision is destined soon or late to be overruled, as it ought to be, or else silently to take its place among those cases which are consistently overlooked or forgotten, or, failing in both of these, it may continually rise up to plague the diligent practitioner. It certainly is at variance with the maxim “vigilantibus ei non dormientibus subvenit lex," so often quoted with approval in our Reports. Battle v. Mercer, 188 N. C., 116, 123 S. E., 258; Pierce v. Eller, 167 N. C., 672, 83 S. E., 758; School v. Peirce, 163 N. C., 424, 79 S. E., 687; Pepper v. Clegg, 132 N. C., 312, 43 S. E., 906; Sluder v. Rollins, 76 N. C., 271.
Without legislative sanction, it adopts the “Courtesy Rule of Practice in Mecklenburg” as the law of the State, and in a sense may be said to constitute a new “Declaration of Independence” for defendants. Heretofore it has been thought that the statute under review dealt.with the rights of litigants and not with the amenities of counsel. Manning v. R. R., 122 N. C., 824, 28 S. E., 963; Kerchner v. Baker, 82 N. C., 169; Waddell v. Wood, 64 N. C., 624. And see White v. Rees, 150 N. C., 678, 64 S. E., 777, followed by Hunter 4. R. R., 163 N. C., 281, 79 S. E., 610, where illness of counsel was held insufficient to establish “excusable neglect” under the statute. The law is the standard or jdumb line set in the midst of the people for their protection and guidance. It is essential that its application should be uniform. It cares for all sorts and conditions of men.
By comparison the following, first from McLeod v. Gooch, 162 N. C., 122, 78 S. E., 4, and, second, from Hamby v. Const. Co., 189 N. C., 747, 128 S. E., 146, though written only a short time ago, stand out in bold relief:
First, “A party has no right to abandon all active prosecution of his case simply because he has retained counsel to represent him in the court.”
Second, “We are not permitted to abandon the rules of practice, nor will they be construed so as to favor the negligent and penalize the .diligent party.”
To like effect are the numerous decisions collected in the dissenting opinion in the case of Sutherland v. McLean, supra.
The difficulty with the position of the majority is, that it overlooks the statutory rights of the plaintiff and creates a hiatus in the law. The *143plaintiff and bis counsel did all tbat tbe law requires of tbeni. Tbe clerk of tbe Superior Court of Cberokee County is guilty of no dereliction of duty. Tbe case was docketed and tried according to tbe usual course and practice of tbe court. No other practice prevails in Cbero-kee County, and yet tbe plaintiff is denied bis judgment, without fault on bis part, and without notice of any contrary mode of procedure existing elsewhere.
Tbe trial court finds tbat “defendant’s counsel could have been reached by telegraph or telephone.” Presumably like connection could have been bad in tbe opposite direction, and perhaps tbe defendant has a telephone in its place of business. But aside from this, tbe orderly processes of the law were duly followed by tbe plaintiff, bis counsel and tbe officers of the court. "Why bold tbe plaintiff to a practice of which be bad no knowledge and took no part in establishing, and at tbe same time grant to tbe defendant a privilege not accorded by law ? “Tbe employment of counsel does not excuse tbe client from proper attention to bis case.” Grandy v: Products Co., 175 N. C., 511, 95 S. E., 914.
Tbe defendant is not represented in this Court by tbe same counsel who filed its answer. 'Would it be possible, then, for it to defeat tbe rights of tbe plaintiff indefinitely by changing counsel from term to term? Note: Tbe practice in Mecklenburg, as appears from tbe record, is for tbe clerk to mail copy of calendar to nonresident counsel, not litigants.
A lawsuit is not a social function which is governed entirely by tbe rules of etiquette. Lex non fav'&t delicatorum voiis.
Tbe instant decision raises this question: Under tbe law as now written, when a defendant, duly served with process, employs a lawyer anywhere in North Carolina to look after bis defense, who simply files answer and does no more, can tbe plaintiff obtain a valid judgment in such ease without further notice to tbe defendant of tbe bearing?
Adams, J., concurs in dissenting opinion.