Sawyer v. Cox , 36 N.C. App. 300 ( 1978 )

244 S.E.2d 173 (1978) 36 N.C. App. 300

Katie B. SAWYER, Administratrix of the Estate of Tommie Sawyer, Deceased, Substituted Party Plaintiff,
v.
John H. COX, M. D., Defendant.

No. 7721SC366.

Court of Appeals of North Carolina.

May 16, 1978. Certiorari Denied July 14, 1978.

Erwin & Beaty by James A. Beaty, Jr., Winston-Salem, for substituted party plaintiff.

Robert B. Wilson, Jr., Winston-Salem, for defendant.

Certiorari Denied by Supreme Court July 14, 1978.

MORRIS, Judge.

Defendant raises two primary questions for this Court: (1) Was judgment by default properly entered? (2) If so, should that judgment be set aside under Rule 60(b)?.

Defendant advances four arguments to support his contention that judgment by default was erroneously entered. We will address each argument separately.

First, defendant asserts that the clerk's entry of default was improper in that no written application for entry of default was made. Rule 55(a) of the Rules of Civil Procedure provides that "[w]hen a party against whom a judgment . . . is sought has failed to plead . . . and that fact is made to appear by affidavit, motion . . . or otherwise, the clerk shall enter his default." Rule 55(a) provides for the use of affidavit or motion or some other method. The use of the disjunctive rather than the conjunctive suggests that the use of a written motion is not mandatory. While it may be better practice to file a written motion, we do not believe that the use of a written motion is mandatory.

Second, defendant asserts that there was no jurisdictional basis for the judgment by default because of failure to comply with G.S. 1-75.11. For the purposes of this discussion we will assume that defendant did not appear. Defendant points to two defects. (1) He asserts that the 11 August 1976 affidavit supporting the judgment, as required by G.S. 1-75.11, was defective in stating that "defendant . . . is not an infant, and neither is he incompetent nor suffering under any known legal disability." He argues that Rule 4(j) requires that the person so served be competent at the time of service (in this case 6 July 1976). In short, defendant urges this Court to hold that the affidavit is legally insufficient because it did not state that defendant was not incompetent on 6 July 1976. Defendant offers no evidence at all to show that he was in fact incompetent. He merely relies upon the technical defect. In developing the philosophy of the new Rules of Civil Procedure in this State, we have generally adopted the philosophy of interpretation of the Federal Rules of Civil Procedure in interpreting the Rules liberally and disregarding technicalities. Johnson v. Johnson, 14 N.C.App. 40, 187 S.E.2d 420 (1972). In the absence of some evidence of incompetence, we are not willing to apply the Rules as technically as defendant would have us. (2) Defendant argues that G.S. 1-75.11 was violated in that the supporting affidavit failed to state that defendant was a natural person domiciled in the State of North Carolina. We consider both the affidavit and verified complaint. See Bimac Corporation v. Henry, 18 N.C.App. 539, 197 S.E.2d 262 (1973). Defendant is referred to as "John H. Cox, M.D.", "a licensed physician", "not an infant", and a "citizen". We believe these terms show that he is a natural person. He was further described as a citizen and resident of Forsyth County, North Carolina, a physician licensed to practice medicine in the State of North Carolina, and a physician "engaged in the specialty of Dermatology in his office and place of occupation at 3000 Maplewood Avenue, Winston-Salem, North Carolina." We believe these uncontradicted facts are sufficient to show "domicile" in North Carolina. Therefore, we hold that the jurisdictional requirements of G.S. 1-75.11 are satisfied.

Third, defendant argues that Rule 55(b)(2) requires a written motion for entry of judgment by default. We disagree. Rule 55(b)(2) states that "the party entitled to a judgment by default shall apply to the judge therefor;" the rule does not specifically require a written motion. Rule 7(b)(1) requires that an application be made by written motion "unless made during a hearing". Since a hearing was conducted 21 October 1976, plaintiff's oral application for judgment during that hearing would be sufficient.

Fourth, defendant argues that judgment by default should be set aside because he was not served with "written notice of the application for judgment at least three days prior to the hearing" as required by Rule 55(b)(2). Although there is some question as to whether defendant's physical presence at the calendar call on 18 October amounted to an appearance, we will, for the purpose of addressing this argument, assume that defendant "appeared". Rule 55(b)(2) requires that the non-moving party "shall be served with written notice of the application for judgment at least three days prior to the hearing on such application". Rule 5(b) provides that service may be accomplished "by mailing it [the notice] to him at his last known address . . .." The record shows that defendant received a copy of the "Request to Calendar Clerk" requesting a "trial on the merits Motion D & J" for Tuesday or Thursday of the week of 18 October 1976. Defendant also was mailed a copy of the actual calendar at least ten days before the hearing. We believe that the mailing of these two documents is sufficient "written notice of the application for judgment". Furthermore, we note that defendant had actual notice and appeared in person at the calendar call on 18 October and that the hearing was held three days later on 21 October as scheduled. We believe that the "Request to Calendar Clerk" and the calendar which were mailed to defendant were sufficient notice to satisfy the requirements of Rule 55(b)(2). We do not discuss whether the actual notice would constitute a sufficient reason to deny defendant's Rule 60(b) motion.

Defendant further contends that the judgment by default should be set aside under Rule 60(b) even if it was properly entered. First, defendant argues that there was insufficient evidence of the causal connection to support the judgment. Plaintiff alleged in the complaint that "defendant's negligence was the sole and proximate cause" of Sawyer's injury. In failing to deny the allegation, defendant admitted the averment. Rule 8(d), North Carolina Rules of Civil Procedure. Thus, there is an admission of the causal connection. Defendant also argues that the judgment should be set aside because the trial court considered defendant's criminal record. The evidence simply does not support this allegation. The record reveals that the court was unaware of defendant's criminal record until the "case was over and the decision was made." Defendant further argues that defendant's problem with alcohol amounted to "excusable neglect" under Rule 60(b)(1). Defendant's argument is without factual basis. Defendant's own witness termed him "an excellent physician", and defendant testified on 9 December 1976 that he had not "had any alcohol for the last 5 ½ months."

Finally, defendant argues that the trial court abused its discretion in not setting aside the judgment under Rule 60(b)(6) because allowing defendant to answer would have been appropriate to accomplish justice. Defendant points out that he was present at the calendar call. He also notes that he finally took some action 30 days after default. In this case, defendant actually received service of process, read the complaint, realized he was to answer within 30 days, actually knew of the hearing on motion for judgment by default, but took no action at all. The record before us reveals no circumstance which would indicate abuse of discretion. Defendant, a well educated professional man, simply failed to take care of his business.

Affirmed.

CLARK and MITCHELL, JJ., concur.