Standard Equipment Co., Inc. v. Albertson

240 S.E.2d 499 (1978) 35 N.C. App. 144

STANDARD EQUIPMENT COMPANY, INC.
v.
Basil E. ALBERTSON, Jr. and wife, Gail Albertson.

No. 7721SC159.

Court of Appeals of North Carolina.

January 24, 1978.

Green & Leonard by Robert K. Leonard, Winston-Salem, for plaintiff-appellee.

Randolph & Randolph by Clyde C. Randolph, Jr., Winston-Salem, for defendants-appellants.

VAUGHN, Judge.

Defendant presents a single assignment of error by which he contends that the facts as found in this case do not justify relief under Rule 60(b). Plaintiff's motion for relief from the judgment did not specify the statutory language upon which it relied, however, it seems clear that the facts alleged relate to Rule 60(b)(1) and relief due to excusable neglect. Thus our inquiry must be whether the facts as found show excusable neglect as a matter of law. Mason v. Mason, 22 N.C.App. 494, 206 S.E.2d 764 (1974). We hold that they do not. A party has a duty "to keep himself advised as to the time and date his cause is calendared for trial for hearing; and when a case is listed on the court calendar, he has notice of the time and date of the hearing." Thompson v. Thompson, 21 N.C.App. 215, 217, 203 S.E.2d 663, 665 (1974), cert. den., 285 N.C. 596, 205 S.E.2d 727; accord, Craver v. Spaugh, 226 N.C. 450, 38 S.E.2d 525 (1946). Plaintiff obviously failed to keep himself informed. Moreover, the court was unable to contact the plaintiff for the simple reason that plaintiff neglected to inform the court of its current address. Parties to suits are expected to give them the attention which a person of ordinary prudence gives his important business. Gregg v. Steele, 24 N.C.App. 310, 210 S.E.2d 434 (1974). Plaintiff was out of contact with the court for a period of ten months. Failure to retain counsel promptly or otherwise to maintain contact with the court should not be classified as excusable neglect of one's own lawsuit. Having invoked the jurisdiction of the court, a party should not be heard to complain when required to attend to the business he placed before it.

Plaintiff contends that the court had authority to vacate the judgment pursuant to Rule 60(b)(6) even if the facts do not show excusable neglect. "While Rule 60(b)(6) has been described as ``a grand reservoir of equitable power to do justice in a particular case,' 7 Moore's Federal Practice, § 60.27[2] at 375 (2d ed. 1975), it should not be a ``catch-all' rule." Norton v. Sawyer, 30 N.C.App. 420, 426, 227 S.E.2d 148, 153 (1976). Courts have the power to vacate judgments when such action is appropriate, yet they should not do so under Rule 60(b)(6) except in extraordinary circumstances and after a showing that justice demands it. Thus the federal courts, in considering similar questions, have identified as relevant factors (1) the general desirability that a final judgment not be lightly disturbed, (2) where relief is sought from a judgment of dismissal or default, the relative interest of deciding cases on the merits and the interest in orderly procedure, (3) the opportunity the movant had to present his claim or defense, and (4) any intervening equities. See 7 Moore's Federal Practice § 60.19 at 237-38 (2d ed. 1975) and the cases cited therein; see also 15 A.L.R.Fed. 193. The facts of this case do not show that the judicial system or the defendant prevented movant from presenting his claim but rather that his own inattention to his affairs caused the dismissal to be entered. The interest of deciding cases on the merits cannot outweigh all other considerations and entitle plaintiff to extraordinary relief under Rule 60(b)(6).

We conclude that the judgment from which defendant appealed was entered in error. The same should be and is hereby vacated.

Judgment vacated.

BROCK, C. J., and ERWIN, J., concur.