Mayhew Electric Co. v. Carras

223 S.E.2d 536 (1976) 29 N.C. App. 105

MAYHEW ELECTRIC COMPANY
v.
George CARRAS, d/b/a Carras Realty Company.

No. 7526DC992.

Court of Appeals of North Carolina.

April 7, 1976.

Whitfield, McNeely, Norwood & Badger by David R. Badger, Charlotte, for plaintiff-appellant.

Echols, Purser & Adams, P.A. by W. Thad Adams, III, Charlotte, for defendant-appellee.

PARKER, Judge.

In their brief, plaintiff's attorneys contend "that the defendant has produced no competent evidence to form a basis of the findings of facts and conclusions of law concerning his having a meritorious defense or his neglect being excusable." However, the question of the sufficiency of the evidence to support the court's findings is not before us on this appeal. Plaintiff has made but one assignment of error as follows:

"1. The Trial Court erred in granting defendant's Motion for Relief from Final Judgment.

Plaintiff's Exception No. 1 (Rp22)"

The only exception in the record is plaintiff's Exception No. 1 which appears at the end of the order appealed from. "This broadside exception does not bring up for review the sufficiency of the evidence to support any particular finding of fact. It presents these questions only: (1) Do the facts found support the judgment, and (2) does error of law appear on the face of the record." City of Kings Mountain v. Cline, 281 N.C. 269, 274, 188 S.E.2d 284, 287 (1972). This long established rule has been brought forward in the new Rules of Appellate Procedure adopted by our Supreme Court on 13 June 1975 effective with respect to all appeals in which notice of appeal was given on and after 1 July 1975. Rule 10(b)(2) contains the following: "A separate exception shall be set out to the making or omission of each finding of fact or conclusion of law which is to be assigned as error."

The facts found do support the order appealed from. "Where a defendant engages an attorney and thereafter diligently confers with the attorney and generally tries to keep informed as to the proceedings, the negligence of the attorney will not be imputed to the defendant." Jones v. Fuel Co., 259 N.C. 206, 209, 130 S.E.2d 324, 327 (1963). Here, the court expressly found that defendant was diligent in communicating with his attorneys and providing them with information necessary to prepare answer. Furthermore, the court found that the neglect of the attorneys in failing to file answer within apt time was both excusable and was not to be imputed to defendant. These findings, coupled with the Court's finding that defendant has a meritorious defense, fully support the order entered. Error of law does not appear on the face of the record.

Since the order was fully supported by the facts found as noted above, we find it unnecessary to consider and do not pass upon the additional ground upon which the Court rested its order, that by virtue of the communications which had taken place between the attorneys for the parties in this case the defendant had "appeared" in this action within the meaning of G.S. 1A-1, Rule 55(b)(2) and for that reason defendant should have been served with written notice of the application for the default judgment at least three days prior to the hearing on such application.

The order appealed from is

Affirmed.

BRITT and CLARK, JJ., concur.