Braun v. Grundman

Court of Appeals of North Carolina

Braun v. Grundman

304 S.E.2d 636, 63 N.C. App. 387, 1983 N.C. App. LEXIS 3061

Court of Appeals of North Carolina·Decided July 19, 1983·No. 8224DC792·Published·Cited by 5 cases

Opinion

EAGLES, Judge.

Plaintiff purports to appeal from an order setting aside a judgment as having been entered upon surprise and excusable neglect. G.S. 1A-1, Rule 60(b)(1). Appeals from such orders must be dismissed as interlocutory. Bailey v. Gooding, 301 N.C. 205, 270 S.E. 2d 431 (1980); Metcalf v. Palmer, 46 N.C. App. 622, 265 S.E. 2d 484 (1980).

Although we need not here address the propriety of the trial court’s action in setting aside the judgment on the grounds of mistake, inadvertence, surprise and excusable neglect, we note that a party is not “surprised” merely when he is alarmed by an action taken by the court, nor merely when he has an erroneous view of the law. Crissman v. Palmer, 225 N.C. 472, 35 S.E. 2d 422 (1945); Endsley v. Supply Corp., 44 N.C. App. 308, 261 S.E. 2d 36 (1979). Furthermore, a party’s voluntary action may estop him from seeking relief from a judgment on the grounds of mistake or *389 excusable neglect. Wright & Miller, Federal Practice & Procedure: Civil § 2858. A party who makes an informed choice as to a particular course of action will not be relieved of the consequences when it subsequently develops that the choice was unfortunate. 7 Moore's Federal Practice § 60.22[2].

Appeal dismissed.

Judges Whichard and Johnson concur.

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EAGLES, Judge.

Plaintiff purports to appeal from an order setting aside a judgment as having been entered upon surprise and excusable neglect. G.S. 1A-1, Rule 60(b)(1). Appeals from such orders must be dismissed as interlocutory. Bailey v. Gooding, 301 N.C. 205, 270 S.E. 2d 431 (1980); Metcalf v. Palmer, 46 N.C. App. 622, 265 S.E. 2d 484 (1980).

Although we need not here address the propriety of the trial court’s action in setting aside the judgment on the grounds of mistake, inadvertence, surprise and excusable neglect, we note that a party is not “surprised” merely when he is alarmed by an action taken by the court, nor merely when he has an erroneous view of the law. Crissman v. Palmer, 225 N.C. 472, 35 S.E. 2d 422 (1945); Endsley v. Supply Corp., 44 N.C. App. 308, 261 S.E. 2d 36 (1979). Furthermore, a party’s voluntary action may estop him from seeking relief from a judgment on the grounds of mistake or *389 excusable neglect. Wright & Miller, Federal Practice & Procedure: Civil § 2858. A party who makes an informed choice as to a particular course of action will not be relieved of the consequences when it subsequently develops that the choice was unfortunate. 7 Moore's Federal Practice § 60.22[2].

Appeal dismissed.

Judges Whichard and Johnson concur.

Braun v. Grundman, 304 S.E.2d 636, 63 N.C. App. 387, 1983 N.C. App. LEXIS 3061 (N.C. Ct. App. 1983).

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