Doxol Gas of Angier, Inc. v. Barefoot

179 S.E.2d 890 (1971)

10 N.C. App. 703

DOXOL GAS OF ANGIER, INC. v. Marvin BAREFOOT.

No. 7111DC58.

Court of Appeals of North Carolina.

March 31, 1971.

*891 James F. Penny, Jr., Lillington, for plaintiff appellant.

No counsel for defendant appellee.

PARKER, Judge.

"Unless the judge finds that there was excusable neglect and this finding is correct as a matter of law, he is not authorized to set aside the judgment. The facts found by him are conclusive if there is any evidence on which to base such finding of fact. Whether the facts found constitute excusable neglect or not is a matter of law, and reviewable upon appeal." Jones-Onslow Land Co. v. Wooten, 177 N.C. 248, 98 S.E. 706. Even when the facts found justify a conclusion that the neglect was excusable, the court cannot set aside the judgment unless there is a meritorious defense, Jones-Onslow Land Co. v. Wooten, supra, for "[i]t would be idle to vacate a judgment where there is no real or substantial defense on the merits." Cayton v. Clark, 212 N.C. 374, 193 S.E. 404. "Parties who have been duly served with summons are required to give their defense that attention which a man of ordinary prudence usually gives his important business, and failure to do so is not excusable." 5 Strong, N.C. Index 2d, Judgments, § 25; Jones v. Statesville Ice & Fuel Co., 259 N.C. 206, 130 S.E.2d 324; Meir v. Walton, 2 N.C.App. 578, 163 S.E.2d 403.

The cases cited above were decided under former G.S. § 1-220, which has now been replaced by Rule 60(b) (1) of the Rules of Civil Procedure. The language of the Rule follows closely the language of the former statute, and the principles announced in the above cases still apply.

In the present case it is our opinion and we so hold that the facts found in the order appealed from do not, as a matter of law, constitute excusable neglect. Furthermore, the defendant failed to show and there was no finding that he has any meritorious defense.

We also note that the order appealed from was entered without any notice to plaintiff. G.S. § 1A-1, Rule 60(b) provides that "[t]he procedure for obtaining *892 any relief from a judgment, order, or proceeding shall be by motion as prescribed in these rules or by an independent action." Rule 7(b) (1) provides that "[a]n application to the court for an order shall be by motion which, unless made during a hearing or trial or at a session at which a cause is on the calendar for that session, shall be made in writing * * *." Rule 5(a) provides that "every written motion other than one which may be heard ex parte * * * shall be served upon each of the parties * * *." Defendant's written motion to set aside the default judgment was not one which might be heard ex parte. Harper v. Sugg, 111 N.C. 324, 16 S.E. 173; 2 McIntosh, N.C. Practice and Procedure, § 1717.

The order appealed from is erroneous and is

Reversed.

MALLARD, C. J., and GRAHAM, J., concur.