Brady v. Town of Chapel Hill

178 S.E.2d 446 (1971)

277 N.C. 720

William Clinton BRADY v. TOWN OF CHAPEL HILL and Harold P. Smith.

No. 76.

Supreme Court of North Carolina.

January 20, 1971.

*447 Ottway Burton, Asheboro, for plaintiff appellant.

Perry C. Henson and Daniel W. Donahue, Greensboro, for defendant appellees.

SHARP, Justice:

Except in certain instances not material here, "original general jurisdiction of all justiciable matters of a civil nature cognizable in the General Court of Justice is vested in the aggregate in the superior court division and the district court division as the trial divisions of the General Court of Justice." G.S. § 7A-240. In general, the district court division is the proper division for the trial of all civil actions in which the amount in controversy is $5,000.00 or less; and the superior court division is the proper division for the trial of all civil actions in which the amount in controversy exceeds $5,000.00. G.S. § 7A-243. The respective divisions are constituted proper or improper for the trial of specific actions in accordance with the provisions of N.C.Gen.Stats. Ch. 7A, art. 20. However, it is specifically provided by G.S. § 7A-242 that "no judgment rendered by any court of the trial divisions in any civil action or proceeding as to which the trial divisions have concurrent original jurisdiction is void or voidable for the sole reason that it was rendered by the court of a trial division which by such allocation is improper for the trial and determination of the civil action or proceeding." (Emphasis added.)

The foregoing statutes make it clear that after Judge Carr entered his order transferring this cause from the superior court division of the General Court of Justice to the district court division, the latter was the proper division in which to try this case. Nothing else appearing, disposition of the case thereafter in the Superior Court was irregular and contrary to the course and practice in the General Court of Justice. However, the judgment of the Superior Court dismissing the action was not, as plaintiff's counsel contends, void.

From the record it is apparent that Judge Ragsdale was unaware of Judge Carr's order transferring the action to the district court. The judgment of dismissal *448 in this case was a mischance, which need not, and should not, have occurred. The clerk erred when he calendared the case for trial in the superior court division; plaintiff's counsel erred when he failed to respond to the notice from the court. Had he appeared and informed the judge of the transfer, the dismissal from which he has attempted to appeal would not have occurred. After the judgment of dismissal was entered in his absence, however, plaintiff's remedyif anywas by a motion in the cause under G.S. § 1A-1, Rule 60(b), and not by appeal. Rule 60(b) provides:

"On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons:

"(1) Mistake, inadvertence, suprise, or excusable neglect;

* * *

"(6) Any other reason justifying relief from the operation of the judgment." (For a succinct discussion of corresponding Fed.R.Civ.P. 60(b) (1) and (6) see 3 Barron and Holtzoff, Federal Practice and Procedure (Wright Ed.1958) §§ 1325, 1329.)

Motions under Rule 60(b) must be made "within a reasonable time." When the motion is based on reason (1) the rule requires it to be made not later than one year after the judgment is taken or entered. If movant is uncertain whether to proceed under clause (1) or (6) of Rule 60(b) he need not specify if his "motion is timely and the reason justifies relief." 7 Moore's Federal Practice § 60.27(2) (2d ed.1970). The broad language of clause (6) "gives the court ample power to vacate judgments whenever such action is appropriate to accomplish justice." 3 Barron and Holtzoff, Federal Practice and Procedure (Wright Ed.) § 1329.

The Court of Appeals dismissed this appeal because (1) it was not taken within ten days of the rendition of a judgment as required by G.S. § 1-279 and (2) plaintiff failed to give notice to defendants as required by G.S. § 1-280. Plaintiff's failure to comply with the requirements of these two statutes would have required the dismissal of the appeal had it been authorized by law. Teague v. Teague, 266 N.C. 320, 146 S.E.2d 87; Walter Corporation v. Gilliam, 260 N.C. 211, 132 S.E.2d 313; 1 N.C. Index 2d Appeal and Error § 14 (1967). However, under the circumstances here disclosed, if plaintiff is to have relief from the judgment of dismissal entered because of his failure to prosecute the action, he must seek it by motion in the cause in the Superior Court of Orange County, where the judgment was rendered. The procedure under Rule 60(b) is analogous to the former practice under G.S. § 1-220 and under motions to set aside an irregular judgment. See Walker v. Story, 262 N.C. 707, 138 S.E.2d 535; Howard v. Boyce, 254 N.C. 255, 118 S.E.2d 897; Menzel v. Menzel and Williams v. Blades, 250 N.C. 649, 110 S.E.2d 333; Moore v. Humphrey, 247 N.C. 423, 101 S.E.2d 460; Duffer v. Brunson, 188 N.C. 789, 125 S.E. 619, 5 N.C. Index 2d Judgments §§ 19 and 24; McIntosh, North Carolina Practice and Procedure §§ 653, 655 (1929). If, upon timely motion made in the Superior Court, plaintiff is able to show that he has a meritorious cause of action and that he himself has acted with proper diligence throughout, the judge may, upon such terms as are just, relieve him from the judgment of dismissal.

The order of the Court of Appeals dismissing plaintiff's appeal is

Affirmed.