Barringer & Gaither, Inc. v. Whittenton

Annotate this Case

206 S.E.2d 301 (1974)

22 N.C. App. 316

BARRINGER & GAITHER, INC. v. E. M. WHITTENTON, Individually, and E. M. Whittenton, tdba Whittruck Brokers, Inc.

No. 7425DC357.

Court of Appeals of North Carolina.

July 3, 1974.

*302 Butner & Gaither by James M. Gaither, Jr., Hickory, for plaintiff.

Bryan, Jones, Johnson, Hunter & Greene by Robert C. Bryan, Dunn, for defendants.

BROCK, Chief Judge.

Defendants contend the purported judgment is void because a separate order was not entered directing the clerk to file Judge Sigmon's judgment and because no notice of the filing was given to defendants by the clerk.

It would seem that defendants are contending that not only must a trial judge sign a judgment when not rendered in open court, but he must also prepare a separate order directing the clerk to file the judgment which he has signed. In our view, the signing of a judgment by the trial judge requires no further directive. It is the clerk's duty to file such judgment. The third paragraph of Rule 58, relied upon by plaintiff, applies to instances where the trial judge directs the clerk to prepare and file judgment. It is inapplicable when the trial judge prepares and signs the judgment.

The record discloses that the trial court made findings of fact and concluded as a matter of law that plaintiff was entitled to the amount prayed for less a set-off for improperly installed equipment. The judgment was signed by the trial judge and filed by counsel for the plaintiff with the clerk. Simultaneously, counsel for the plaintiff filed a certificate of service certifying that service of the judgment had been made upon defendants by mailing a true copy of the same. The defendants do not deny the receipt of the copy of judgment.

Rule 58 is designed to achieve the objectives of (1) making the moment of the entry of judgment easily identifiable, and (2) furnishing fair notice to all parties of the entry of the judgment. These objectives were clearly achieved by the actions of counsel for the plaintiff.

For the reasons stated, the judgment was properly entered, and effective notice of the filing of the judgment was afforded to defendants by the mailing to counsel of a true copy of the judgment. In the absence of a finding of any prejudice to defendants, the order denying defendants' motion to vacate the judgment is


BRITT and BALEY, JJ., concur.