Jim Walter Homes, Inc. v. Peartree

222 S.E.2d 706 (1976)

28 N.C. App. 709

JIM WALTER HOMES, INC. v. Willie Herman PEARTREE.

No. 752DC756.

Court of Appeals of North Carolina.

March 17, 1976.

*708 W. Faison Barnes and Anthony L. Giordano, Charlotte, for plaintiff-appellant.

John H. Harmon, New Bern, for defendant-appellee.

MARTIN, Judge.

Plaintiff contends the trial court erred in entering an order granting a new trial.

Plaintiff argues that under G.S. 7A-192 Judge Manning had no power to rule on defendant's motion because he had not been authorized in writing to hear motions and enter interlocutory orders. G.S. 7A-192 provides, in relevant part:

"Any district judge may hear motions and enter interlocutory orders in causes regularly calendared for trial or for the disposition of motions, at any session to which the district judge has been assigned to preside. The chief district judge and any district judge designated by written order or rule of the chief district judge, may in chambers hear motions and enter interlocutory orders in all causes pending in the district courts of the district . . .." (Emphasis added).

In other words, a district judge other than the chief district judge may hear motions and enter interlocutory orders during any session over which he has been assigned to preside, whether the assignment be oral or written, but he may not hear motions in chambers without written authorization.

The record shows that defendant's motion was heard "[b]efore Manning, J., June 9, 1975 Session of Beaufort County, the General Court of Justice, District Court Division", and that Judge Manning had been assigned to this session orally. The motion was not heard in chambers. Judge Manning was thus authorized to hear motions and enter interlocutory orders during the session over which he had been assigned to preside whether the assignment be oral or in writing.

Plaintiff contends there was no excusable neglect sufficient to grant a new trial. Rule 60(b) of the North Carolina Rules of Civil Procedure provides:

"On 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; . . . . . (6) Any other reason justifying relief from the operation of the judgment."

Rule 60(b) 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. The North Carolina Supreme Court has stated that its "broad language . . . `gives the court ample power to vacate judgments whenever such action is appropriate to accomplish justice.'" Brady v. Town of Chapel Hill, 277 N.C. 720, 178 S.E.2d 446 (1971).

It is our opinion, and we so hold, that there is plenary competent evidence to support the findings of fact, which in turn support the conclusion that the failure of attorney Woolard to appeal to the court for a continuance upon receipt of the statement of Dr. Shapiro constituted neglect on the *709 part of said attorney which is not imputable to the defendant, and that defendant had a meritorious defense. The judgment appealed from is

Affirmed.

CLARK, J., concurs.

VAUGHN, J., concurs in the result.

VAUGHN, Judge (concurring):

I concur in the result of this opinion. Although there was some testimony from which the judge could have concluded that defendant's failure to appear at trial was excusable, there is not a scintilla of evidence to indicate that his counsel, Mr. Woolard, neglected the case. Instead, it affirmatively appears from the record that Mr. Woolard went to great lengths to protect a procrastinating client.