Lee v. Jenkins

HILL, Judge.

Plaintiffs complaint alleges that defendant, through his son, was negligent in the operation of a tractor which the latter drove through a stop sign and into plaintiffs automobile, then operated by his wife, causing damage to the automobile. Defendant answered and denied plaintiffs allegations, alleged contributory negligence and last clear chance, and counterclaimed for damages to the tractor.

When the case was called for trial, the record reveals that neither plaintiff nor his counsel was present; defendant and his counsel were present, however. The trial judge stated, “We will proceed, Mr. Burch, with your counterclaim. After plaintiff being called and there being no response and his counsel not being present, this matter is hereby dismissed with prejudice.” Defendant then presented evidence on his counterclaim, and the judge charged the jury. After a twenty minute deliberation, the jury returned and announced its verdict finding plaintiff contributorily negligent and awarding defendant $3,000. Then, apparently the son of plaintiffs counsel addressed the trial judge as follows:

MR. JONES: Your Honor, may I be heard.

THE COURT: Yes, Mr. Jones.

Mr. JONES: I give notice of appeal, your Honor. I’d also like to make a motion at this time.

The COURT: All right, sir. I’ll be delighted to hear from you.

Mr. JONES: I’d like to make a motion to set aside the verdict based on excuse (unintelligible) from the fact that my father was tied up in criminal Superior Court this morning and that he tried to get over here and that he got hung up over there.

THE COURT: Motion is denied. Anything else, sir?

Judgment for defendant thereupon was entered, and plaintiff gave notice of appeal.

Plaintiff has set out in the record ten assignments of error but he has brought forward and argued in his brief only Assignment of Error Nos. 1,4,5,9, and 10. Therefore, Assignments of Error Nos. 2,3,6,7, and 8 are deemed abandoned.

By Assignment of Error Nos. 1, 4, 5, and 9, plaintiff contends that the trial judge erred in proceeding with the trial in his absence and in the absence of his counsel and in denying his motion “to set aside the verdict based on excuse (unintelligible) from the fact that my father was tied up in criminal Superior Court this morning and that he tried to get over here and that he got hung up over there.” Although this motion is not in form a motion for relief from a final judgment under Rule 60(b) of the North Carolina Rules of Civil Procedure, it is such in substance, and we will treat it accordingly.

Rule 60(b)(1) provides that “[o]n 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 . ” Upon hearing such a motion, it is the duty of the trial judge to make findings of fact and to determine from such facts whether the movant is entitled to relief from a final judgment. Hoglen v. James, 38 N.C. App. 728, 248 S.E. 2d 901 (1978); Wynnewood Corp. v. Soderquist, 27 N.C. App. 611, 219 S.E. 2d 787 (1975). This the trial judge did not do, and this is error.

Although not appearing in the record, it is contended by plaintiff and conceded by defendant in their briefs that the trial judge ordered a telephone call placed to the office of plaintiffs counsel, advising him that the case was ready for trial. Upon being notified that plaintiff’s counsel was in superior court in an adjoining county, the judge ordered that plaintiffs counsel be called there. The trial jduge then was advised that counsel was leaving to come to Bertie County, a distance of 85 miles, for trial of the case sub judice.

Rule 3 of the General Rules of Practice for the Superior and District. Courts, adopted pursuant to G.S. 7A-34, concerning applications for a continuance, states: “When an attorney has conflicting engagements in different courts, priority shall be as follows: Appellate Courts, Superior Court, District Court, Magistrate’s Court.”

Having been advised of the conflict by plaintiff’s counsel with superior court, the trial judge should have held the case open a sufficient length of time for counsel to safely travel 85 miles from one courthouse to another. Certainly, the judge was aware of the presence of plaintiff’s counsel in an adjoining county when the son of plaintiff’s counsel advised the judge of his whereabouts as set out in that portion of the record quoted above. On the facts found within the record itself, the judge could have stricken his order dismissing plaintiffs claim and ordered a mistrial on defendant’s counterclaim. His power to so act is well established: “During the term a judgment is in fieri and the court has power prior to the expiration of the term to modify, amend, or set aside the judgment . . . notwithstanding notice of appeal.” 8 Strong’s N.C. Index 3d Judgments § 6, p. 19, and cases cited therein.

Plaintiff has not had his day in court. At the very least, he should have an opportunity to show excusable neglect and a meritorious defense on his Rule 60(b) motion in a proper hearing. See Wynnewood Corp. v. Soderquist, supra. For these reasons, the order dismissing plaintiffs claim and the judge’s denial of plaintiff’s motion to set aside defendant’s verdict on the counterclaim are vacated and the cause is remanded for a hearing on plaintiff’s relief under Rule 60(b).

Vacated and remanded.

Judge Becton concurs in the result. Judge HEDRICK dissents.