Moseley v. BRANCH BANKING AND TRUST COMPANY , 19 N.C. App. 137 ( 1973 )

198 S.E.2d 36 (1973) 19 N.C. App. 137

Frances C. MOSELEY
v.
BRANCH BANKING AND TRUST COMPANY as Executor and Trustee under the Will of Maynard N. Moseley, Deceased, et al.

No. 733SC136.

Court of Appeals of North Carolina.

August 1, 1973. Certiorari Denied October 2, 1973.

Daniel R. Dixon, Raleigh, for plaintiff.

Basil L. Sherrill, Raleigh, for defendant.

Certiorari Denied by Supreme Court October 2, 1973.

BROCK, Judge.

Plaintiff assigns as error the order of the trial court vacating the entry of default and allowing defendant Branch Banking and Trust Company 20 days in which to answer. Plaintiff also assigns as error the trial court's denial of her motion to strike the answer of defendant Branch Banking & Trust Co.

Plaintiff first contends that the order setting aside the entry of default and permitting defendant to file answer was issued "out of time." She argues that this order was premature because the court did not first rule on her motion for default judgment. We find this argument without merit; the court tacitly denied plaintiff's motion for default judgment by setting aside the entry of default.

Plaintiff also contends that the court failed to find "good cause" for the setting aside of the entry of default, the standard required by G.S. § 1A-1, Rule 55(d). Appellant has not included in the record on appeal the evidence heard by the trial judge upon defendant's motion to vacate the entry of default. "Where appellant fails to bring the evidence up for review, we presume the trial judge acted within his discretion on evidence showing good cause to vacate the entry of default." Crotts v. Pawn Shop, 16 N.C.App. 392, 192 S.E.2d 55. In addition to this presumption, we find that good cause existed on the face of the record for reasons discussed below.

Plaintiff further challenges the court's allowing defendant 20 days in which to answer from the time of its vacating the entry of default, and the actual acceptance of defendant's answer within that 20 day period. We find the portion of the court's order allowing defendant 20 days in which to answer surplusage and not prejudicial error for the following reasons. The entry of default filed on 28 February 1972 was improperly entered. Rule 12(a)(1) of our Rules of Civil Procedure provides in pertinent part:

(a)(1) When Presented.—A defendant shall serve his answer within 30 days after service of the summons and complaint upon him. * * * Service of a motion permitted under this rule alters these periods of time as follows, unless a different time is fixed by order of the court:

a. If the court denies the motion or postpones its disposition until the trial on the merits, the responsive pleading shall be served within 20 days after notice of the court's action . . . ." (Emphasis added).

Rule 12(b)(3) allows a defense of improper venue to be raised by motion.

In the present case, defendant aptly raised the defense of improper venue in its 26 January 1972 motion for change of venue. That motion constituted an objection to improper venue on the basis of G.S. § 1-78, regarding venue in actions brought against executors. This motion altered the period of time in which defendant could answer until 20 days after notice of a ruling on its motion. "Although the motions provided for by Rule 12(b) . . . are not pleadings under Rule 7(a), Rule 12(a) provides that the service of such a motion results in a postponement of the time for serving an answer, and, consequently, no default results pending disposition of these motions. 6 J. Moore's, Federal Practice Par. 55.02 [3] (2nd ed. 1948), p. 55-16.

Defendant's motion for an extension of time filed on 24 January 1972, provided for by Rule 6 of our rules, in no way waived defendant's right to make any of the Rule 12(b) defenses allowed by motion. While Rule 12(h) does provide for waiver of the defense of improper venue when not joined in a motion made "under this rule", this waiver is not applicable to a motion for enlargement of time made under Rule 6.

Under Rule 12(a)(1)(a) defendant had 20 days to answer from the time of notice of the court's 20 March 1972 denial of his motion to remove because of improper venue. The court's order—also made on 20 March 1972—setting aside the entry of default and allowing defendant 20 days to answer merely vacated an erroneous entry of default and allowed the same length of time to answer which defendant already had by statute. These assignments of error are overruled.

Plaintiff assigns as error the denial of her motion for summary judgment and the allowance of defendant's motion for summary judgment. Plaintiff does not contend that disposition of this action by summary judgment was improper or that any disputed material issues of fact exist; rather she argues that summary judgment should have been granted in her favor.

In its judgment the court made findings of fact and conclusions of law. Plaintiff excepts to each of the conclusions of law. "[T]he Supreme Court and this court have emphasized in numerous opinions that upon a motion for summary judgment it is no part of the court's function to decide issues of fact but solely to determine whether there is an issue of fact to be tried." Stonestreet v. Compton Motors, Inc., N.C. App., 197 S.E.2d 579 (Filed June 27, 1973). The conclusions of law (if that's what they are) to which plaintiff excepts are mere surplusage. The sole questions presented on appeal from this summary judgment are whether a genuine issue as to any material fact exists, and whether the trial judge was correct in ruling that defendant was entitled to judgment as a matter of law.

Plaintiff has not contended that a material issue of fact exists. Therefore, our single consideration is whether summary judgment was properly granted for defendant. We think it was. In Stokes v. Smith, 246 N.C. 694, 100 S.E.2d 85, it was held that a mere conveyance by the husband and wife of wife's lands to a third person and the subsequent reconveyance by such third person to the husband does not establish as a matter of law an attempt to circumvent the statute requiring a privy examination of the wife. The burden is on the part asserting the invalidity of the deed to prove that it is not in fact what it purports to be. Plaintiff does not allege a purpose or intent to circumvent G.S. § 52-6 and there is no issue of fact present on this point. She contends that on the undisputed facts in this case the conveyances in question as a matter of law should be void for noncompliance with G.S. § 52-6. Plaintiff has failed to meet the Stokes burden. Her attempt to distinguish the alleged "strawman" in the Stokes situation from the alleged corporate alter ego in the present case is unconvincing. Summary judgment was properly entered for defendant. These assignments of error are overruled.

Affirmed.

BRITT and HEDRICK, JJ., concur.