Callaway v. Freeman

Court of Appeals of North Carolina

Callaway v. Freeman

322 S.E.2d 432, 71 N.C. App. 451, 1984 N.C. App. LEXIS 3851

CourtCourt of Appeals of North Carolina

DecidedNovember 20, 1984

DocketNo. 843DC130

StatusPublished

This text of 322 S.E.2d 432 (Callaway v. Freeman) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Callaway v. Freeman, 322 S.E.2d 432, 71 N.C. App. 451, 1984 N.C. App. LEXIS 3851 (N.C. Ct. App. 1984).

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Opinion

WELLS, Judge.

Defendant contends that her N.C. Gen. Stat. § 1A1, Rule 60(b) of the Rules of Civil Procedure motion to set the judgment aside should have been granted because of her mistake and excusable neglect and because of the misconduct of plaintiff. We do not address the misconduct issue, but hold that defendant did show excusable neglect, and reverse.

The record before us shows that defendant clearly demonstrated that she never received a trial calendar notice and did not know the case against her had been calendared for trial. The record also shows that the case was calendared for trial on 11 July 1983, following a request by plaintiffs attorney, dated 8 July 1983, and that the case was calendared for trial on 25 July 1983. This was a clear violation of Rule 2(b) of the General Rules of Practice for the Superior and District Courts, which requires that civil calendars shall be published and distributed to attorneys of record (or party where there is no attorney of record) “no later than four weeks prior to the first day of court.” Under these circumstances, defendant was unfairly and unlawfully denied the opportunity to appear and defend the action against her. The interest of justice requires that the order of the trial court denying defendant’s Rule 60(b) motion be reversed, that the judgment against defendant be vacated, and that this case be remanded for proper calendaring for trial.

Reversed, judgment vacated, and remanded.

Judges Arnold and Becton concur.

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WELLS, Judge.

Defendant contends that her N.C. Gen. Stat. § 1A1, Rule 60(b) of the Rules of Civil Procedure motion to set the judgment aside should have been granted because of her mistake and excusable neglect and because of the misconduct of plaintiff. We do not address the misconduct issue, but hold that defendant did show excusable neglect, and reverse.

The record before us shows that defendant clearly demonstrated that she never received a trial calendar notice and did not know the case against her had been calendared for trial. The record also shows that the case was calendared for trial on 11 July 1983, following a request by plaintiffs attorney, dated 8 July 1983, and that the case was calendared for trial on 25 July 1983. This was a clear violation of Rule 2(b) of the General Rules of Practice for the Superior and District Courts, which requires that civil calendars shall be published and distributed to attorneys of record (or party where there is no attorney of record) “no later than four weeks prior to the first day of court.” Under these circumstances, defendant was unfairly and unlawfully denied the opportunity to appear and defend the action against her. The interest of justice requires that the order of the trial court denying defendant’s Rule 60(b) motion be reversed, that the judgment against defendant be vacated, and that this case be remanded for proper calendaring for trial.

Reversed, judgment vacated, and remanded.

Judges Arnold and Becton concur.

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Bluebook (online)

322 S.E.2d 432, 71 N.C. App. 451, 1984 N.C. App. LEXIS 3851, Counsel Stack Legal Research, https://law.counselstack.com/opinion/callaway-v-freeman-ncctapp-1984.

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