This action was begun in 1886, and was referred by consent at March Term, 1889. The referee held two or three sittings, the last being in February, 1891. Thereafter the plaintiff took no further steps to procure a hearing or to have the report made, and at Fall Term, 1895, the cause being reached regularly on the docket, the defendant moved for judgment as of nonsuit. This motion was continued over till the second week, when, the case being reached, the plaintiff was called, and not appearing by counsel or in person, judgment was entered as of nonsuit. It is true that the plaintiff, after nonsuit, can bring a new action within a year, but we do not concur with appellant that therefore a judgment of nonsuit can not be set aside, like any other judgment, if there was excusable neglect, because a plaintiff in such cases might be unjustly mulcted in a large bill of costs or otherwise prejudiced when not in default. We think, however, the facts in this case do not show excusable neglect on the part of the plaintiff. The delay to (430) prosecute the case before the referee, or to take any steps to secure a report, or to give any attention whatsoever to the case from February, 1891, till September, 1895, a period of more than four years and a half, was inexcusable neglect. When the case was reached the first week of the term, and that state of facts appeared, his Honor might well have adjudged that the plaintiff had failed to prosecute his action. The case was continued over to the second week, with the motion to nonsuit still pending, and the parties to an action pending in court are fixed with notice of all motions therein made at term. Coor v. Smith, 107 N.C. 430;Wilson v. Pearson, 102 N.C. 290; Spencer v. Credle, 102 N.C. 68;Hemphill v. Moore, 104 N.C. 379; Stancill v. Gay, 92 N.C. 455;University v. Lassiter, 83 N.C. 38; Sparrow v. Davidson, 77 N.C. 35. When, therefore, the case was again regularly reached on the second week, the plaintiff certainly should have shown cause why the nonsuit should not have been entered. It was inexcusable neglect not to have shown that much attention to the case, for the judge does not find that *Page 259 the plaintiff or his counsel was sick or unable to attend. Besides, upon the facts now shown by him, if the plaintiff had been present he could not have successfully opposed the nonsuit, when for four years and seven months he had given no attention to the cause.
It is true that ordinarily the rule is that a consent judgment can not be set aside except by consent or the death of the referee, (Clark's Code, p. 405, 2d Ed.,) though there may be exceptions to that rule as to most others. This however, is not an attempt to set aside a consent reference, but a dismissal of the action for a failure to prosecute it, and such failure may be shown by long-continued failure to prosecute it before the referee as well as in any other way (431) (McNeill v. Lawton, 99 N.C. 16), for the Court retains jurisdiction of the action. If this were not true, then, if a plaintiff can once get his case referred by consent, and finds it likely to go against him, he can vex the defendant by continuing it indefinitely. Judges and lawyers might come and go, but that case, like Tennyson's brook, would
"go on Forever and forever."
The judge does not find that there was excusable neglect, nor does he find facts which would justify such conclusion of law. If there was excusable neglect, the judge in his discretion might set aside, the judgment or refuse to do so, and the exercise of such discretion is not reviewable. Simonton v. Lanier, 71 N.C. 498; Brown v. Hale, 93 N.C. 188. But the discretionary power only exists when excusable neglect has been shown. Code, sec. 274.
The judgment setting aside the nonsuit is not based upon excusable neglect, or indeed any other ground, but the "case on appeal" settled by the judge apparently rests his action on the ground that the nonsuit "was improvidently and erroneously adjudged." If so, it could only have been corrected by an appeal.
The action of the Court below in setting aside the nonsuit is
REVERSED.
Cited: Cowles v. Cowles, 121 N.C. 275; Vick v. Baker, 122 N.C. 100;Manning v. R. R., ib., 831; Marsh v. Griffin, 123 N.C. 667, 670; Nortonv. McLaurin, 125 N.C. 188; Hardy v. Hardy, 128 N.C. 183, 184; Koch v.Porter, 129 N.C. 136; Clement v. Ireland, ib., 222; Morris v. Ins. Co.,131 N.C. 213; Riley v. Pelletier, 134 N.C. 318; Wooten v. Drug Co.,169 N.C. 66; Hardware Co. v. Banking Co., ib., 746; Lumber Co. v.Cottingham, 173 N.C. 327. *Page 260
(432)