Hollins v. Coastal Training Institute

L. CHARLES WRIGHT, Retired Appellate Judge.

Plaintiff brought a suit in February 1985 to recover funds alleged to be due him from defendant. After various pleadings, the matter was set for trial on December 5, 1985. At plaintiff's request, a continuance was granted. The case was again set for trial April 3,1986. Plaintiff did not appear. Judgment of dismissal for want of prosecution was entered on that date. Rule 60(b), Alabama Rules of Civil Procedure, motions to set aside and for relief from judgment were filed by plaintiff in February and March of 1987. The motions were denied. Plaintiff appealed from the judgment denying the 60(b) motions.

Plaintiff, as grounds for his motion for relief from judgment, stated excusable neglect and mistake because he was disabled to appear in court on April 3, 1986, when judgment of dismissal was. entered. Such grounds are proper under Rule 60(b). However, the rule requires that the motion on such grounds shall be made “not more than four months after the judgment, order, or proceeding was entered or taken.” The motion in this instance was made approximately one year after judgment. It thus came too late. The judgment denying the 60(b) motion is affirmed.

The foregoing opinion was prepared by Retired Appellate Judge L. CHARLES WRIGHT while serving on active duty status as a judge of this court under the provisions of § 12-18-10(e), Code 1975, and is hereby adopted as that of the court.

AFFIRMED.

All the Judges concur.