Whitfield v. Wakefield , 51 N.C. App. 124 ( 1981 )

275 S.E.2d 263 (1981)

Paul L. WHITFIELD
v.
Walter WAKEFIELD, d/b/a The Old Book Store.

No. 8026DC710.

Court of Appeals of North Carolina.

March 3, 1981.

Rodney W. Seaford, Charlotte, for plaintiff-appellant.

Weinstein, Sturges, Odom, Groves, Bigger, Jonas & Campbell by Allen W. Singer and William H. Sturges, Charlotte, for defendant-appellee.

HEDRICK, Judge.

We note at the outset that defendant's motion, dated 10 September 1979, "to set aside the default and Default Judgment entered herein on January 31, 1978 ..." does not contain the rule pursuant to which the motion was made as contemplated by Rule 6 of the General Rules of Practice for the Superior and District Courts; nevertheless, the trial judge purported to set aside the final judgment entered on 31 January 1978 pursuant to Rule 60(b). Obviously, subsections (1-5) of Rule 60(b) have no application in this case. Therefore, we must assume that the trial judge purported to set the 31 January 1978 judgment aside pursuant to Rule 60(b)(6).

Plaintiff in his brief argues that "it was inappropriate for Judge Lanning to rule upon the question of the defendant's appearance," since the original trial judge, Judge Cantrell, had considered this question and in the 31 January 1978 judgment had made a finding of fact with respect to that question as follows:

3. That the defendant has filed no responsive pleadings, has requested no extension of time, and has otherwise failed to appear in the cause, ...

We agree. Motions under Rule 60(b)(6) cannot be used as a substitute for appellate review. O'Neill v. Southern National Bank, 40 N.C.App. 227, 252 S.E.2d 231 (1979); Waters v. Qualified Personnel, Inc., 32 N.C. App. 548, 233 S.E.2d 76 (1977), rev'd on other grounds, 294 N.C. 200, 240 S.E.2d 338 (1978). Judge Lanning's finding that the letter sent from defendant to plaintiff on or about 14 December 1977 constituted an "appearance," such that defendant was entitled under Rule 55(b)(2) to three days' notice of the hearing on plaintiff's application for a judgment by default, is clearly a reversal of Judge Cantrell's earlier ruling. Assuming arguendo that Judge Cantrell's finding that defendant had made no appearance was erroneous, Judge Lanning, in ruling on defendant's Rule 60(b) motion, had no authority to substitute his own finding regarding defendant's appearance and set aside the default judgment. Waters v. Qualified Personnel, Inc., supra; Campbell v. First Citizens Bank and Trust Co., 23 N.C.App. 631, 209 S.E.2d 556 (1974).

Although the trial court has broad equitable power to vacate judgments pursuant to Rule 60(b)(6) whenever such action is appropriate to accomplish justice, the trial court cannot do so without a showing based upon competent evidence that justice requires it, Norton v. Sawyer, 30 N.C.App. 420, 227 S.E.2d 148, disc. review denied, 291 N.C. 176, 229 S.E.2d 689 (1976), and only in extraordinary circumstances, Standard Equipment Co., Inc. v. Albertson, 35 N.C. App. 144, 240 S.E.2d 499 (1978); Campbell v. First Citizens Bank and Trust Co., supra. In the present case, defendant made no showing that justice required that Judge Lanning set aside the default judgment entered by Judge Cantrell on 31 January 1978. Judge Lanning's order setting aside the 31 January 1978 judgment solely for what Judge Lanning perceived to be a violation of the technical requirements of Rule 55(b)(2) is of far less significance than defendant's failure to take due notice of the lawful process of the courts when he failed to answer or otherwise appear, and when he merely referred to the summons served upon him as "highly laughable & a disgrace." Certainly, as well, the situation in the present case is not one of the "exceptional circumstances" necessary for the imposition of Rule 60(b)(6) as contemplated in Standard Equipment Co., Inc. v. Albertson, supra, and Campbell v. First Citizens Bank and Trust Co., supra.

We therefore conclude that Judge Lanning had no authority to set aside the judgment by default.

The order setting aside the judgment dated 31 January 1978 is vacated and the cause is remanded to the District Court for the entry of an order reinstating the 31 January 1978 judgment of Judge Cantrell.

Vacated and remanded.

WEBB and HILL, JJ., concur.