Britt v. Allen

183 S.E.2d 303 (1971) 12 N.C. App. 399

Alice Lucille Craven BRITT and husband, Ossie German Britt, and Ida Leola Craven Bristow
v.
Garland W. ALLEN.

No. 7119SC551.

Court of Appeals of North Carolina.

September 15, 1971.

Ottway Burton, Asheboro, for plaintiffs appellants.

Moser & Moser, by Thad T. Moser, Asheboro, for defendant appellee.

BRITT, Judge.

Although not designated as such, the judgment appealed from amounted to a summary judgment. Rule 56 of the Rules of Civil Procedure, G.S. 1A-1, Rule 56, relating to summary judgments, provides in pertinent part as follows: * * * "A party against whom a claim, counterclaim, or crossclaim is asserted or a declaratory judgment is sought, may, at any time, move with or without supporting affidavits for a summary judgment in his favor as to all or any part thereof. * * * The motion shall be served at least 10 days before the time fixed for the hearing."

In the instant case defendant made no motion for summary judgment in the superior court; the record indicates that the judgment was entered on the court's own motion. Not only did defendants fail to move for summary judgment but plaintiffs were not given at least 10 days' notice before the time fixed for the hearing as required by Rule 56(c). Since the procedure prescribed by Rule 56 was not followed, the judgment appealed from is erroneous. Ketner v. Rouzer, 11 N.C.App. 483, 182 S.E.2d 21 (1971); Lane v. Faust, 9 N.C.App. 427, 176 S.E.2d 381 (1970).

Plaintiffs' motion for summary judgment in this court is denied. Article IV, Sec. 12(2) of the Constitution of North Carolina provides that the Court of Appeals shall have such appellate jurisdiction as the General Assembly may prescribe. G.S. § 7A-26 provides that "(t)he Supreme Court and the Court of Appeals respectively have jurisdiction to review upon appeal decisions of the several courts of the General Court of Justice and of administrative agencies, upon matters of law or legal inference, in accordance with the system of appeals provided in this article." (Emphasis added.) Motions for summary judgment are properly heard in the trial courts.

For the reasons stated, the judgment appealed from is reversed and this cause is remanded to the superior court.

Reversed and remanded.

MORRIS and PARKER, JJ., concur.