Kirby v. ASHEVILLE CONTRACTING COMPANY , 11 N.C. App. 128 ( 1971 )

180 S.E.2d 407 (1971) 11 N.C. App. 128

J. R. KIRBY
v.
ASHEVILLE CONTRACTING COMPANY, Inc.

No. 7125SC136.

Court of Appeals of North Carolina.

April 28, 1971. Certiorari Denied June 10, 1971.

L. H. Wall, Lenoir, for plaintiff appellant.

Bennett, Kelly & Long, by Harold K. Bennett, Asheville, for defendant appellee.

Certiorari Denied by Supreme Court June 10, 1971.

HEDRICK, Judge.

The plaintiff's ten assignments of error present the question of whether Judge McLean had authority to set aside the judgment of default entered by the clerk, and, if so, whether the evidence supports the findings of fact and the conclusion of law entered thereon.

G.S. § 1A-1, Rule 55(d), provides:

"For good cause shown the court may set aside an entry of default, and, if a judgment by default has been entered, the judge may set it aside in accordance with Rule 60(b)."

The judgment entered by the clerk was not a mere entry of default, but was a final judgment which may be set aside only for the reasons stated in Rule 60(b) which provides as follows:

"On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons:

"(1) Mistake, inadvertence, surprise, or excusable neglect."

Rule 60(b) (1) replaces former G.S. § 1-220, and the cases interpreting it are still applicable. Doxol Gas of Angier, Inc. v. Barefoot, N.C.App., 179 S.E.2d 890 (filed 3-31-71). Some of the principles laid down in these cases are necessary for a proper understanding of the instant case. In Rierson v. York, 227 N.C. 575, 42 S.E.2d 902 (1947), it is stated that "* * * the excusability of the neglect on which relief is granted is that of the litigant, not that of the attorney." In Jones v. Statesville Ice & Fuel Co., 259 N.C. 206, 130 S.E.2d 324 (1963), Denny, C. J., stated:

"It is generally held under the above statute that ``(p)arties who have been duly served with summons are required to give their defense that attention which a man of ordinary prudence usually gives his important business, and failure to do so is not excusable.' Strong, North Carolina Index, Judgments, section 22; Whitley v. Caddell, 236 N.C. 516, 73 S.E.2d 162; Pate v. Hospital, 234 N.C. 637, 68 S.E.2d 288; Whitaker v. Raines, 226 N.C. 526, 39 S.E.2d 266; Johnson v. Sidbury, 225 N.C. 208, 34 S.E.2d 67.

"Where a defendant engages an attorney and thereafter diligently confers with the attorney and generally tries to keep informed as to the proceedings, the negligence of the attorney will not be imputed to the defendant. If, however, the defendant turns a legal matter over to an attorney upon the latter's assurance that he will handle the matter, and then the defendant does nothing further about it, such neglect will be inexcusable. Moore v. Deal, 239 N.C. 224, 79 S.E.2d 507; Pepper v. Clegg, 132 N.C. 312, 43 S.E. 906."

Even if there is evidence from which a finding of excusable neglect can be made, our case law requires a finding of a meritorious defense before the judgment may be set aside. Doxol Gas of Angier, Inc. v. Barefoot, supra; Cayton v. Clark, 212 N.C. 374, 193 S.E. 404 (1937). The neglect of the attorney will not be imputed to the litigant unless he is guilty of inexcusable neglect. Hodge v. First Atlantic Corp., 6 N.C.App. 353, 169 S.E.2d 917 (1969). In the instant case, the evidence reveals that the defendant had employed counsel to handle his defense; that he had given them all pertinent information necessary to defend the action; that counsel had satisfactorily defended the action since the filing of the original complaint on 2 November 1967; and that the defendant had every reason to believe that counsel would properly handle the second amended complaint.

Findings of fact made by the trial court upon a motion to set aside a judgment by default are binding on appeal if supported by any competent evidence. Hodge v. First Atlantic Corp., supra; Moore v. Deal, 239 N.C. 224, 79 S.E.2d 507 (1954). Therefore, it is our opinion, and we so hold, that there is plenary competent evidence to support the findings of fact, including the finding that the defendant had a meritorious defense, and they in turn support the conclusion that the defendant's failure to answer or otherwise plead to the second amended complaint was due to mistake and excusable neglect. The order appealed from is affirmed.

Affirmed.

BROCK and MORRIS, JJ., concur.