Privette v. Privette , 30 N.C. App. 41 ( 1976 )

226 S.E.2d 188 (1976) 30 N.C. App. 41

Mildred Ruth PRIVETTE, Individually, and Mildred Ruth Privette, guardian ad litem of Martha Lynette Kemper, Minor, Petitioners
v.
Ernestine W. PRIVETTE, widow, et al., Defendants,
v.
PEOPLES BANK & TRUST COMPANY, Trustee for William Avon Privette, Jr., under the Will of Avon Privette, Third-Party Defendant.

No. 769SC139.

Court of Appeals of North Carolina.

July 7, 1976.

Yarborough, Jolly & Williamson by E. F. Yarborough and Wilbur M. Jolly, Louisburg, for petitioners-appellees.

Davis & Davis by F. Leary Davis, Jr., Zebulon, for respondents-appellees and third-party respondents-appellees.

J. Michael Weeks, Zebulon, for respondents-appellants.

BRITT, Judge.

Appellants contend the trial court erred in (1) denying their motion pursuant to G.S. 1A-1, Rule 6(b), for an extension of time to plead to the crossclaims, (2) denying their motion pursuant to Rule 55(d) to set aside the entry of default against them, and (3) entering default judgment on the crossclaims. We find no merit in the contentions.

It is clear that a motion pursuant to Rule 6(b) to enlarge the time for filing a pleading, and a motion pursuant to Rule 55(d) to set aside an entry by default are addressed to the discretion of the trial court. Insurance Company v. Chantos, 21 N.C.App. 129, 203 S.E.2d 421 (1974). In addition, where a Rule 6(b) motion is made after the specified period, the rule expressly provides that the judge may allow the motion ". . . where the failure to act was the result of excusable neglect"; and the Rule 55(d) motion may be allowed "[f]or good cause shown. . ." It is also clear that a discretionary order of the trial court is conclusive on appeal absent a showing of abuse of discretion. 1 Strong, N.C. Index 3d, Appeal and Error § 54.

In his affidavit filed with his Rule 6(b) motion, Eugene stated: He was personally served with process in the proceeding on 9 September 1974 and immediately sought the advice of legal counsel. His attorney advised him that if the allegations of the petition were true, it would not be necessary for him to file a responsive pleading. Relying on that advice, he filed no pleading. When the crossclaims were served on him on 29 October 1974, he did not consult his attorney and was unaware that he had to file a responsive pleading in order to protect his interest in the subject property. After receiving a copy of the notice and motion for summary judgment in February 1975, he consulted his attorney. If allowed to plead, he would deny the allegations of the crossclaims that he owns no interest in the subject property and that the other parties, and those under whom they claim, had been in adverse possession of the property for more than twenty years.

In the affidavits filed by respondents, except Eugene and wife, said respondents purported to show, among other things, that the deed from Eugene to Avon and Wade actually included the subject property. In his affidavit, T. H. LeCroy stated that he was formerly a vice-president of Peoples Bank; that in October 1971 Eugene told him that when he executed the deed to Avon and Wade he thought he was conveying all his interest in all Franklin County farms formerly owned by his father.

We hold that Judge Bailey did not abuse his discretion in denying Eugene's Rule 6(b) motion, and that Judge Godwin did not abuse his discretion in denying the Rule 55(d) motion. In view of this holding, we further hold that Judge Godwin did not err in entering judgment by default final against Eugene and wife. G.S. 1A-1, Rule 55(b)(2).

Pursuant to Rule 10(d) of the Rules of Appellate Procedure, appellees cross assign as error the failure of the trial court to rule on their motion for summary judgment filed 21 May 1975 on the grounds that on the record before the court there was no genuine issue as to any material fact and the movants were entitled to judgment in their favor as a matter of law, and said omission by the court deprived them of an alternative basis in law supporting the judgment from which appeal has been taken.

Inasmuch as we are affirming the judgment entered by Judge Godwin, which judgment includes the same relief appellees would receive through summary judgment, no ruling upon the cross assignment is necessary.

The order and judgment appealed from are

Affirmed.

BROCK, C. J., and VAUGHN, J., concur.