Waters v. Qualified Personnel, Inc. , 32 N.C. App. 548 ( 1977 )

233 S.E.2d 76 (1977) 32 N.C. App. 548

Robert F. WATERS
v.
QUALIFIED PERSONNEL, INC.

No. 7618SC698.

Court of Appeals of North Carolina.

March 16, 1977.

Alspaugh, Rivenbark & Lively by James B. Rivenbark, and Lawrence Egerton, Jr., Greensboro, for plaintiff-appellee.

Jordan, Wright, Nichols, Caffrey & Hill by William L. Stocks and R. Thompson Wright, Greensboro, for defendant-appellant.

ARNOLD, Judge.

The rule is well settled in North Carolina that, "[o]ne superior court judge cannot modify an order of another superior court judge, even if based upon an erroneous application of legal principles." Public Service Co. v. Lovin, 9 N.C.App. 709, 711, 177 S.E.2d 448, 449 (1970). This statement is in accord with Greene v. Charlotte Chemical Laboratory, Inc., 254 N.C. 680, 120 S.E.2d 82 (1961), wherein our Supreme Court said that one judge's "order or judgment which affects some substantial right claimed by a party may not be modified or vacated by another judge on the ground that it is erroneous." Id. at 693, 120 S.E.2d at 91.

This is not to say that a superior court judge never has authority to change the result reached by another superior court judge. A new judge can hear a party's motion for rehearing to set aside a judgment, provided that such is proper and authorized by G.S. 1A-1, Rule 60. Capital Corporation v. Enterprises, Inc., 10 N.C. App. 519, 179 S.E.2d 190 (1971). Rule 60, entitled Relief from Judgment or Order, lists a number of grounds for granting relief from a judgment. All relate to what could be loosely called matters of fact. They include mistake, fraud, newly discovered evidence, and satisfaction and release. Two others are arguably applicable here. Rule 60(b)(4) allows relief from a judgment which is void. Judge Long concluded that Judge McConnell's earlier judgment was void ab initio. That conclusion is wrong. Both parties were always within the jurisdiction of the court. The court, in the person of Judge McConnell, had the power to adjudicate the rights, duties and liabilities of the parties as they arose out of matters within the pleadings. Judge McConnell's judgment may have been erroneous (and as to this we express no opinion), but it certainly was not void.

The other possible ground for setting aside the summary judgment is provided by Rule 60(b)(6) which permits relief from a judgment for "[a]ny other reason justifying relief from the operation of the judgment." This rule is not so broad as it first appears. As William A. Shuford says in North Carolina Civil Practice and Procedure, "Motions under 60(b)(6), however, are not to be used as a substitute for appeal, and an erroneous judgment cannot be attacked under this clause." Id., § 60-11; Young v. State Farm Mutual Auto. Ins. Co., 267 N.C. 339, 148 S.E.2d 226 (1966); In re Brown, 23 N.C.App. 109, 208 S.E.2d 282 (1974). Even if Judge McConnell erred in answering the question of whether inadequate notice under Rule 56 is waived where an attorney, other than one who signs the pleadings, appears with the client at the hearing, and with knowledge of the attorney of record, argues the motion without objection to the inadequate notice (and again, we express no opinion on this), still plaintiff's only remedy from Judge McConnell's entry of summary judgment was by appeal to this Court.

The plaintiff has also attempted to file a "conditional" appeal from Judge McConnell's summary judgment. Plaintiff relies on Rule 10(d), Rules of Appellate Procedure, but his reliance is misplaced. Rule 10(d) permits an appellee, without taking appeal, to cross-assign as error an act or omission of the trial court "which deprived the appellee of an alternative basis in law for supporting the judgment [or] order. . . from which appeal has been taken." (Emphasis added.) Plaintiff does not suggest an alternative reason for supporting Judge Long's order; he asks, instead, for the opportunity to attack Judge McConnell's judgment. He is too late. Rule 10(d) does not permit this. The "conditional" appeal is not allowed, and the order appealed from is

Reversed.

PARKER and MARTIN, JJ., concur.