Hoglen v. James

248 S.E.2d 901 (1978) 38 N.C. App. 728

Jane Gaddy HOGLEN
v.
Myrtle M. JAMES.

No. 7830SC93.

Court of Appeals of North Carolina.

November 21, 1978.

Wilson & Palmer by W. C. Palmer and Bruce L. Cannon, Lenoir, for plaintiff-appellant.

Van Winkle, Buck, Wall, Starnes, Hyde & Davis, by O. E. Starnes, Jr., Asheville, for defendant-appellee.

HEDRICK, Judge.

Unless the court in its Order of dismissal for failure to prosecute the action otherwise specifies, the dismissal under Rule 41 operates as an adjudication on the merits. G.S. § 1A-1, Rule 41(b). Plaintiff's motion, filed 9 May 1975, to "set aside the order of dismissal in this cause" does not specify the number of the rule under which plaintiff was proceeding as required by Rule 6 of the General Rules of Practice for Superior and District Courts supplemental to the Rules of Civil Procedure; however, since defendant failed to challenge this omission at the hearing on the motion, see Byerly v. Byerly, N.C.App., 248 S.E.2d 433 (1978), the trial judge should have treated plaintiff's motion as one filed pursuant to G.S. § 1A-1, Rule 60(b), which provides in pertinent part: "On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect."

It is the duty of the judge presiding at a Rule 60(b) hearing to make findings of fact and to determine from such facts whether the movant is entitled to relief from a final judgment or order. U.S. I.F. Wynnewood Corp. v. Soderquist, 27 N.C.App. 611, 219 S.E.2d 787 (1975). A motion for relief under Rule 60(b) is addressed to the sound discretion of the judge hearing the motion. Burwell v. Wilkerson, 30 N.C.App. 110, 226 S.E.2d 220 (1976). Where a judge refuses to entertain such a motion because he labors under the erroneous belief that he is without power to grant it, then he has failed to exercise the discretion conferred on him by law. Hudgins v. White, 65 N.C. 393 (1871).

In the present case, plaintiff's motion to "set aside the order of dismissal" was made pursuant to G.S. § 1A-1, Rule 60(b). The judge had the authority to grant the relief requested and it was his duty to rule on the motion. The statement in the order "that this Court . . . does not have authority to pass upon or reconsider Judge Lewis' Order" discloses that the hearing Judge erroneously believed that he lacked the power to grant the motion. A Superior Court judge has the authority to grant relief under a Rule 60(b) motion without offending the rule that precludes one Superior Court judge from reviewing the decision of another. See, e. g., Charleston Capital Corp. v. Love Valley Enterprises, Inc., 10 N.C.App. 519, 179 S.E.2d 190 (1971).

Because Judge Griffin erroneously believed he lacked the power to grant the relief requested, plaintiff has never had the proper hearing on his Rule 60(b) motion to which he is entitled.

Vacate and remanded.

BROCK, C. J., and PARKER, J., concur.