Lowe's Charlotte Hardware, Inc. v. Howard

HEDRICK, Judge.

Defendants contend “ [t] he decision of the Superior Court to set aside the original judgment was based on findings of fact not supported by the evidence, and by the refusal to find facts' supported by competent, uncontradicted evidence.”

Findings of fact made by a trial court, if supported by any competent evidence, are binding on appeal even though there is evidence to the contrary. Cogdill v. Highway Comm. and Westfeldt v. Highway Comm., 279 N.C. 313, 182 S.E. 2d 373 (1971) ; Kirby v. Contracting Co., 11 N.C. App. 128, 180 S.E. 2d 407 (1971), cert. denied 278 N.C. 701 (1971). There was plenary competent evidence to support the findings of Judge McLean, including the finding that no notice that this case would be called was received by counsel for the plaintiff. This assignment of error is overruled.

Defendants next contend that “[t]he decision of the Superior Court to set aside the original judgment was based on the erroneous conclusion that the. trial court lacked jurisdiction over the action, by virtue of its being in reference.”

The order of Judge McLean merely recites that “[t]he judgment of nonsuit . . . was void because the matter was in reference by virtue of a consent agreement of the parties at the time the judgment was entered .... ” - • ■

An order of reference, not expressly limited in duration, continues in force until executed or revoked by act of law or discharged by the court. Tyson v. Robinson, 25 N.C. 333 (1843). No order terminating the reference was entered in this case; thus, Judge Clarkson was without authority to enter a judgment as of nonsuit while the order of reference remained in effect. Coburn v. Timber Cory., 257 N.C. 222, 125 S.E. 2d 593 (1962).

Finally, defendants contend that Judge McLean erred in setting aside the judgment of nonsuit “in that a' reasonable time exceeding one year had passed from the entry of judgment prior to the filing of the motion.”

While motions under G.S. 1A-1, Rule 60(b)(1), (2) and (3) must be brought within one year after a judgment is taken or entered, motions under Rule 60(b) (6), to set aside a final judgment for “[a]ny other reason justifying relief from the operation of the judgment” may be brought within “a reasonable time.” G.S. 1A-1, Rule 60(b). “The broad language of clause (6) ‘gives the court ample power to vacate judgments whenever such action is appropriate to accomplish justice’. 8 Barron and Holtzoff, Federal Practice and Procedure (Wright Ed.) § 1329.” Brady v. Town of Chapel Hill, 277 N.C. 720, 723, 178 S.E. 2d 446, 448 (1971).

The findings and conclusions of Judge McLean clearly demonstrate that plaintiffs’ motion was made within a reasonable time and that the entry of the order setting aside the judgment as of nonsuit was appropriate to accomplish justice.

For the reasons stated, the order appealed from is

Affirmed.

Judges Brock and Vaughn concur.