Windley v. Dockery , 95 N.C. App. 771 ( 1989 )

383 S.E.2d 682 (1989)

Walter H. WINDLEY, Jr.
v.
Charles DOCKERY and Gaston Roofing and Construction.

No. 8927DC216.

Court of Appeals of North Carolina.

October 3, 1989.

Walter H. Windley, Jr., Gastonia, pro se.

Childers, Fowler & Childers by Max L. Childers and David C. Childers, Mt. Holly, for defendants, appellants.

HEDRICK, Chief Judge.

The only question raised on this appeal is whether Judge Carpenter erred in entering the order dated 14 November 1988 denying defendants' Rule 60 motion. G.S. 7A-228(c) provides:

Whenever [an appeal from a magistrate] is docketed and is regularly set for trial, and the appellant fails to appear and prosecute his appeal, the presiding judge may have the appellant called and the appeal dismissed; and in such case the judgment of the magistrate shall be affirmed.

The question before us is whether Judge Carpenter erred in denying defendants' motion to obtain relief from that judgment pursuant to their Rule 60(b) motion.

On their motion, defendants allege they had no notice that the case which they had appealed from the magistrate to the district court had been calendared for trial. Thus, the critical question before Judge Carpenter with respect to defendants' motion was whether defendants had notice, constructive or actual, to come in and prosecute their appeal.

Rule 60(b)(6) of the North Carolina Rules of Civil Procedure authorizes the court to grant relief to a party from a judgment for any other just cause. It is clear that the court may give relief from a judgment pursuant to Rule 60(b)(6) if the party making the motion has not had notice that the case was duly calendared. See Hardware, Inc. v. Howard, 18 N.C.App. 80, 196 S.E.2d 53 (1973). "It is the duty of the trial court in ruling on a 60(b) motion to make findings of fact and to determine from such facts whether the movant is entitled to relief from such judgment or order." York v. Taylor, 79 N.C.App. 653, 655, 339 S.E.2d 830, 832 (1986).

In the present case, it was the duty of the trial judge to make findings of fact relative to whether defendant had notice that the case appealed from the magistrate to the district court was on the calendar for disposition. In the case sub judice, Judge Stevens found as a fact that the case had been duly calendared and that neither plaintiff nor defendants appeared. The only evidence before Judge Carpenter with respect to defendants' Rule 60(b) motion was that defendants had not received notice. Therefore, since the only evidence regarding the matter of whether defendants had received notice was in the negative, it was the duty of the trial judge to find as a fact defendants did not have notice and to allow defendants' motion entering an order vacating the judgment of 10 June 1988 and allowing the parties to proceed to proper disposition of the appeal.

Reversed and remanded.

ARNOLD and BECTON, JJ., concur.