Chris v. Bruce , 45 N.C. App. 287 ( 1980 )

262 S.E.2d 716 (1980)

Pete J. and Chris J. CHRIS
v.
S. Bruce and Carole E. HILL.

No. 7921SC472.

Court of Appeals of North Carolina.

February 19, 1980.

William G. Pfefferkorn and David C. Pishko, Winston, Salem, for plaintiffs-appellees.

Satisky & Silverstein by John M. Silverstein, Raleigh, for defendants-appellants.

ARNOLD, Judge.

Defendants argue that the trial court denied them their due process and other constitutional rights by proceeding with the trial in their absence. Essentially, defendants argue that because they and their counsel live two hundred miles away from the site of the trial, "common courtesy and decency" required that plaintiffs' counsel notify them after the calendar call that the case had been moved to first on the calendar, and that the trial court abused his discretion by proceeding to trial without making any attempt to determine their whereabouts.

We agree with defendants that, under the circumstances common courtesy and decency required more than plaintiffs' counsel did. A telephone call after the calendar call on Monday to opposing counsel two hundred miles away would not have been a heavy burden upon plaintiffs' counsel. Moreover, we cannot agree with the argument by plaintiffs' counsel that such an act of courtesy on his part would in any respect "compromise his role as an advocate."

As noted in Pepper v. Clegg, 132 N.C. 312, 315, 43 S.E. 906, 907 (1903), however, "[i]n all cases . . . counsel and their clients are sole judges of what should be done as a matter of courtesy. The courts administer only legal rights." While we may find counsel's conduct less than exemplary, and their attitude disappointing, there is no indication that plaintiffs' counsel did anything to mislead defendants, or failed to fulfill any promise to defendants' counsel to notify him of changes in the calendar.

Situations and emergencies may arise (illnesses, accidents, acts of God) which excuse court appearances by parties or counsel. A reasonable effort by the trial court, such as a telephone call to the attorney of record, to determine the absent party's whereabouts might prevent the necessity of a new trial. Furthermore, such courtesy and consideration of counsel by the trial court helps to remove any appearance of favoritism by the court.

In the matter before us, we disapprove of the trial judge's failure to make any attempt to determine defendants' or their counsel's whereabouts when the case was called for trial. However, we cannot find that he abused his discretion in failing to do so. It has been stated often that a party to a lawsuit must give it the attention a prudent man gives to his important business. Pepper v. Clegg, supra; City of Durham v. Keen, 40 N.C.App. 652, 253 S.E.2d 585, cert. denied and app. dism., 297 N.C. 608, 257 S.E.2d 217 (1979). Defendants in this case received adequate notice, and the evidence supports the court's finding that their failure to appear for trial was not excusable. See G.S. 1A-1, Rule 60(b)(1). We find no abuse of discretion in the denial of defendants' motion.

Defendants proceed to argue a number of purported errors in the conduct of the trial, but as plaintiffs point out, the majority of these alleged errors are not reviewable upon appeal because they were not objected to at trial. Rule 10(a) and (b)(1), Rules of Appellate Procedure. And we do not find that the trial court expressed an opinion on the merits of the case, violating G.S. 1A-1, Rule 51(a). We find no error prejudicial to defendants in the conduct of the trial. The judgment is

Affirmed.

PARKER and WEBB, JJ., concur.