City of Salisbury v. KIRK RLTY. CO., INC.

268 S.E.2d 873 (1980)

48 N.C. App. 427

CITY OF SALISBURY, North Carolina v. KIRK REALTY CO., INC.

No. 8019SC70.

Court of Appeals of North Carolina.

August 19, 1980.

*875 Coughenour, Linn & Short by Stahle Linn and Carl W. Short, Jr., Salisbury, for petitioner-appellee.

Thomas M. King, Salisbury, for respondent-appellant.

MORRIS, Chief Judge.

Because the judgment of 2 May 1979 was entered by the Clerk before the expiration of the statutory period of 20 days allowed for the filing of exceptions, it is an irregular judgment, Collins v. Highway Commission, 237 N.C. 277, 74 S.E.2d 709 (1953), but stands as the judgment of the court until set aside by a proper proceeding therefor.

To set aside a judgment for irregularity, it is necessary to make a motion in the cause before the court which rendered the judgment, with notice to the other party. The objection cannot be made by appeal, or an independent action, or by collateral attack. The time for such motion is not limited to one year after the judgment is rendered, but it must be made by the party affected and within a reasonable time to show that he has been diligent to protect his rights. The application should also show that the judgment affects injuriously the rights of the party and that he has a meritorious defense; otherwise, it would be useless to set aside the judgment.

Wilson and Wilson, 2 McIntosh North Carolina Practice and Procedure, § 1715, pp. 165-166 (2d ed. 1956).

The procedure for setting aside an irregular judgment is now found in G.S. 1A-1, Rule 60(b)(6). See Comment by Dean Dickson Phillips, Wilson and Wilson, 2 McIntosh North Carolina Practice and Procedure, § 1720 P. 93 (2d ed. 1970 Supp.). We do not find anything in the Rule or any comment thereto which changes the requirements from those set out in Collinsa showing by the moving party that the judgment affects his rights injuriously and that he has a meritorious defense.

If no request is made by either party to a hearing on a motion, the trial judge is not required to find the facts upon which he bases his ruling. G.S. 1A-1, Rule 52(a)(2). Here neither party requested that the court find facts. No facts were found. "In such case, it will be presumed that the judge, upon proper evidence, found facts sufficient to support his judgment." Haiduven v. Cooper, 23 N.C.App. 67, 69, 208 S.E.2d 223, 225 (1974).

Without the presumption, it is clear from this record that the meritorious defense claimed by respondent is that, in his opinion, the property is worth more than the compensation set by the commissioners. This is also the only possible way the judgment affects respondent's rights injuriously. It is just as obvious that any evidence he had with respect to value or comparables should have been, and very probably was, presented to the commissioners of appraisal.

The judgment denying the motion to set aside the 2 May 1979 judgment must be

Affirmed.

CLARK and ERWIN, JJ., concur.