Utica Mut. Ins. Co. v. Johnson

254 S.E.2d 643 (1979)

UTICA MUTUAL INSURANCE COMPANY, Plaintiff, v. Luther L. JOHNSON, t/a Johnson's Alignment Service, Defendant and Third-Party Plaintiff, v. George L. BROADNAX, Third-Party Defendant.

No. 7812DC767.

Court of Appeals of North Carolina.

May 15, 1979.

*644 Barrington, Jones, Witcover & Carter by C. Bruce Armstrong, Fayetteville, for third-party defendant-appellant.

No counsel contra.

HARRY C. MARTIN, Judge.

The third-party defendant, Broadnax, contends the trial court's order of 28 April 1978 was erroneously entered and should be vacated. We agree.

The 28 April 1978 order vacated the 24 October 1977 order. It was not an order correcting a clerical mistake or oversight entered pursuant to N.C.G.S. 1A-1, Rule 60(a). Rather, the order vacated the prior order and held Broadnax was not entitled to have the default judgment against him set aside. The courts have always had inherent authority to correct clerical errors in orders and judgments, but they do not have the power to amend or vacate an order or judgment so as to affect the rights of the parties, without giving the parties notice and an opportunity to be heard. Vandooren v. Vandooren, 27 N.C.App. 279, 218 S.E.2d 715 (1975). "No person shall be . . in any manner deprived of his . . . property, but by the law of the land." N.C. Const. art. I, § 19. The "law of the land" requires notice and opportunity to be heard. In re Wilson, 257 N.C. 593, 126 S.E.2d 489 (1962); Eason v. Spence, 232 N.C. 579, 61 S.E.2d 717 (1950).

Rule 60(a) does not authorize the trial court to set aside a previous ruling where the reason for so doing is legal error. Sink v. Easter, 288 N.C. 183, 217 S.E.2d 532 (1975); Snell v. Board of Education, 29 N.C. App. 31, 222 S.E.2d 756 (1976).

Defendant Johnson made no motion challenging the 24 October 1977 order, apparently realizing his remedy, if any, was by way of appeal. The court had no authority *645 to enter the order of 28 April 1978 and it is vacated.

Vacated and remanded.

PARKER and MITCHELL, JJ., concur.