Harrington v. Harrington , 38 N.C. App. 610 ( 1978 )

248 S.E.2d 460 (1978) 38 N.C. App. 610

Kyle Kelly HARRINGTON and Kyle Harrington, Trustees
v.
Alex S. and Joyce S. HARRINGTON.

No. 7811SC47.

Court of Appeals of North Carolina.

November 7, 1978.

Morgan, Bryan, Jones, Johnson, Hunter & Greene by Robert C. Bryan, Dunn, for plaintiffs-appellees.

Mast, Tew, Nall & Moore, P. A., by Joseph T. Nall, Smithfield, for defendants-appellants.

ARNOLD, Judge.

Defendants first contend that their failure to appear in court on 29 August was excusable neglect, induced by the confusion of receiving two trial calendars with their case calendared for two different months. They argue that it was reasonable for them to assume that the September calendar "extinguished" the August one, and they seek relief under G.S. 1A-1, Rule 60(b)(1) from the judgment entered against them.

We find that defendants' failure to appear at the August session was not excusable neglect. We note initially that relief under Rule 60(b) is within the discretion of the trial court, and such a decision will be disturbed only for an abuse of discretion. Burwell v. Wilkerson, 30 N.C.App. 110, 226 S.E.2d 220 (1976). It is clear that the trial court's decision here comports with numerous North Carolina cases on the same topic. See, e. g., Baer v. McCall, 212 N.C. 389, 193 S.E. 406 (1937); Mason v. Mason, 22 N.C.App. 494, 206 S.E.2d 764 (1974); Engines & Equipment, Inc. v. Lipscomb, 15 N.C.App. 120, 189 S.E.2d 498 (1972); Holcombe v. Bowman, 8 N.C.App. 673, 175 S.E.2d 362 (1970). "A lawsuit is a serious matter. He who is a party to a case in court ``must give it that attention which a prudent man gives to his important business.'" Pepper v. Clegg, 132 N.C. 312, 315, 43 S.E. 906, 907 (1903). The record indicates that defendants were told in June by the trial court itself that the case would be tried in August. Moreover, any confusion brought about by the receipt of the two trial calendars could have been cleared up by a simple phone call to the clerk of court. It is apparent that defendants did not deal with this case as one would an important business matter.

We also reject defendants' contention that their appeal of the original judgment was improperly dismissed. In the order dismissing the appeal, the trial court found as fact that judgment was rendered and entered in the court minutes on 1 September 1977, signed by the judge on 9 September, and filed on 12 September. Defendants filed appeal entries on 21 September. Under Rule 3(c) of the Rules of Appellate Procedure, "appeal from a judgment or order in a civil action or special proceeding must be taken within 10 days after its entry." The trial court found that more than 10 days had elapsed between the entry of judgment and the notice of appeal, and dismissed the appeal.

Defendants argue that this Court should consult the Federal Rules of Civil Procedure for assistance in defining "entry of judgment." They insist that the federal requirement that "every judgment shall be set forth on a separate document," FRCP Rule 58, should be read into our Rule 58. However, G.S. 1A-1, Rule 58 clearly defines an entry of judgment: "where judgment is rendered in open court, the clerk shall make a notation in his minutes . . . and such notation shall constitute the entry of judgment for the purposes of these rules." We need not look outside our rules to expand the definition. Here, judgment was entered on 1 September and notice of appeal was given on 21 September. As the 10-day period was exceeded, the appeal was properly dismissed.

The orders of the trial court are

Affirmed.

CLARK and ERWIN, JJ., concur.