Sherman v. Myers

222 S.E.2d 749 (1976)

Fred SHERMAN, Jr. v. J. D. MYERS and Betty T. Myers.

No. 7521SC851.

Court of Appeals of North Carolina.

March 17, 1976.

*750 Badgett, Calaway, Phillips & Davis by Richard G. Badgett, Winston-Salem, for plaintiff-appellee.

A. Carl Penney, Winston-Salem, for defendants-appellants.

MARTIN, Judge.

Defendants first contend the court erred by failing to consider the merits of the defendants' motion pursuant to Rule 60 and, secondly, that the court erred in failing to make a proper or sufficient finding of fact in its order denying defendants' motion.

Rule 6 of the General Rules of Practice for the Superior Court, Supplemental to the Rules of Civil Procedure, provides in part, "All motions, written or oral, shall state the rule number or numbers under which the movant is proceeding."

Defendants' motion makes no mention of Rule 60 of the Rules of Civil Procedure nor does it set forth any of the reasons enumerated in the Rule as grounds for relief from the summary judgment. It merely sets forth the defendants' contentions concerning the controversy and the chronology of the occurrences leading up to the entry of the summary judgment and subsequent thereto. It was therefore not procedurally permissible for Judge Seay to entertain the motion. It is apparent that the court did not understand on what theory the defendants were proceeding by the following comment which is a part of the record, to wit:

"I just never heard of it before. It looks to me if you have a remedy at all it would be to seek certiorari to the Court of Appeals. I would be very reluctant about upsetting Judge Exum's judgment. I wasn't here, didn't hear the case argued before Judge Exum. I don't know what he considered at all."

While it is true that Judge Seay was aware that defendants were attempting to proceed pursuant to Rule 60, he was not required to hear and pass upon the motion which failed to state either the rule upon which they were proceeding or the specific grounds upon which they sought relief. We therefore treat his denial of the motion as a dismissal and affirm the order.

Affirmed.

BRITT and HEDRICK, JJ., concur.