BRITT, Justice.
Did the trial court err in entering its order vacating the divorce judgment entered at the same session of the court without actual notice to defendant and without a hearing? We hold that it did not.
In its opinion the Court of Appeals declined to consider the question posed in the light of Rule 60 of the Rules of Civil Procedure but quoted extensively from
Hagins v. Redevelopment Commission,
275 N.C. 90, 165 S.E. 2d 490 (1969). Inasmuch as the Rules of Civil Procedure were not in effect at the time
Hagins
was decided, we prefer to review the case at hand in the light of these rules.
G.S. 1A-1, Rule 60, is entitled “Relief from Judgment or Order”. Rule 60(b) provides as follows:
“(b)
Mistakes; inadvertence; excusable neglect; newly discovered evidence; fraud, etc. —
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, surprise or excusable neglect;
(2) Newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b);
(3) Fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party;
(4) The judgment is void;
(5) The judgment has been satisfied, released, or discharged, or a prior judgment upon which it is
based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or
(6) Any other reason justifying relief from the operation of the judgment.
The motion shall be made within a reasonable time, and for reasons (1), (2) and (3) not more than one year after the judgment, order, or proceeding was entered or taken. A motion under this section does not affect the finality of a judgment or suspend its operation. This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding, or to set aside a judgment for fraud upon the court.
The procedure for obtaining any relief from a judgment, order, or proceeding shall be by motion as prescribed in these rules or by an independent action.
(Emphasis ours.)
Rule 60(b) makes no express provisions for the manner in which a motion thereunder must be served. Furthermore, it does not provide that notice be given to any party. Rather, it compels the parties to look to the other provisions of “these rules” to determine the requisites of a proper motion. G.S. 1A-1, Rule 7, governs the form of motions under the North Carolina Rules of Civil Procedure. In pertinent part, it requires that “[a]n application to the court for an order shall be by motion which,
unless made during a hearing or trial or at a session at which a cause is on the calendar for that session,
shall be made in writing, shall state the grounds therefor, and shall set forth the relief or order sought. . . (Emphasis added.) Plaintiff’s motion in this case was made orally during the session of court at which the case was calendared. This form of motion is clearly permitted by Rule 7.
An oral motion such as the one made by plaintiff is not subject to the actual notice requirement of Rule 6(d) which requires that
written
motions be served at least five days prior to the date set for the hearing on the motion.
Sims v. Oakwood Trailer Sales Corp.,
18 N.C. App. 726, 731, 198 S.E. 2d 73,
cert. denied,
283 N.C. 754, 198 S.E. 2d 723 (1973). This conclusion is made even clearer by comparing North Carolina’s Rule 7 with the similar federal provision. The North Carolina r-ule excepts “from the requirement that they be in writing motions made ‘at a session at which a
cause is on the calendar for that session,’ whereas the Federal Rule contains no such language. . . Shuford,
North Carolina Civil Practice and Procedure
§ 7.1 at 56 (1975).
This change in the wording of Rule 7 clearly allows the continuation of the pre-rules practice under which oral motions to which no actual notice provision applied were allowed in an action during the session of court at which it was regularly calendared. This conclusion is bolstered by the editorial comment appended to Rule 7(b)(1). It states that this portion of the rule is intended to make “explicit as a matter of literal statement the motion practice actually followed” prior to the adoption of the rules.
We therefore hold that where an oral motion is appropriately made under Rule 7, the doctrine that a party to an action has constructive notice of all orders and motions made in the cause during the session of court at which the cause is regularly calendared is preserved in Rules 6 and 7 of the North Carolina Rules of Civil Procedure. Thus, in the case at bar defendant was charged with constructive notice of plaintiffs motion for relief from the judgment entered in the action. Actual notice to defendant was not required.
Defendant argues one other contention with regard to the procedure by which plaintiff’s motion was made. He contends that her motion did not comply with Rule 6 of the Rules of Practice for Superior and District Courts adopted by this Court pursuant to G.S. 7A-34 and promulgated in 276 N.C. 735 (1970). This rule provides, among other things, that “[a]ll motions, written or oral, shall state the rule number or numbers under which the movant is proceeding”.
The record does not contain plaintiff’s motion and it is difficult to ascertain whether the grounds for the motion were adequately stated. Nevertheless, we do not think this defect fatal.
See: Lehrer v. Edgecombe Manufacturing Co.,
13 N.C. App. 412, 185 S.E. 2d 727 (1972);
Long v. Coble,
11 N.C. App. 624, 182 S.E. 2d 234,
cert. denied,
279 N.C. 395, 183 S.E. 2d 246 (1971);
contra, Sherman v. Myers,
29 N.C. App. 29, 222 S.E. 2d 749 (1976). The directive of this rule of practice has the salutory purpose of ensuring that the court and the parties are aware of the grounds upon which the movant is relying. The court’s order in this case indicates that the judge was fully aware of the basis for plaintiff’s
motion. It states that “upon motion of counsel for the plaintiff showing that errors have been committed in the complaint filed in this action in behalf of the plaintiff, and the Court, in its discretion, finds that the judgment heretofore entered in this action should be stricken.” Because this awareness of the grounds upon which plaintiff’s motion was made has been shown, we conclude that the motion was adequately stated.
Finally, we conclude that the trial court properly exercised its discretion in relieving plaintiff from the judgment. Rule 60(b)(1) allows the court to grant a party relief on the basis of “[mistake, inadvertence, surprise, or excusable neglect.” Excusable neglect is present in this case.
Free access — add to your briefcase to read the full text and ask questions with AI
BRITT, Justice.
Did the trial court err in entering its order vacating the divorce judgment entered at the same session of the court without actual notice to defendant and without a hearing? We hold that it did not.
In its opinion the Court of Appeals declined to consider the question posed in the light of Rule 60 of the Rules of Civil Procedure but quoted extensively from
Hagins v. Redevelopment Commission,
275 N.C. 90, 165 S.E. 2d 490 (1969). Inasmuch as the Rules of Civil Procedure were not in effect at the time
Hagins
was decided, we prefer to review the case at hand in the light of these rules.
G.S. 1A-1, Rule 60, is entitled “Relief from Judgment or Order”. Rule 60(b) provides as follows:
“(b)
Mistakes; inadvertence; excusable neglect; newly discovered evidence; fraud, etc. —
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, surprise or excusable neglect;
(2) Newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b);
(3) Fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party;
(4) The judgment is void;
(5) The judgment has been satisfied, released, or discharged, or a prior judgment upon which it is
based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or
(6) Any other reason justifying relief from the operation of the judgment.
The motion shall be made within a reasonable time, and for reasons (1), (2) and (3) not more than one year after the judgment, order, or proceeding was entered or taken. A motion under this section does not affect the finality of a judgment or suspend its operation. This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding, or to set aside a judgment for fraud upon the court.
The procedure for obtaining any relief from a judgment, order, or proceeding shall be by motion as prescribed in these rules or by an independent action.
(Emphasis ours.)
Rule 60(b) makes no express provisions for the manner in which a motion thereunder must be served. Furthermore, it does not provide that notice be given to any party. Rather, it compels the parties to look to the other provisions of “these rules” to determine the requisites of a proper motion. G.S. 1A-1, Rule 7, governs the form of motions under the North Carolina Rules of Civil Procedure. In pertinent part, it requires that “[a]n application to the court for an order shall be by motion which,
unless made during a hearing or trial or at a session at which a cause is on the calendar for that session,
shall be made in writing, shall state the grounds therefor, and shall set forth the relief or order sought. . . (Emphasis added.) Plaintiff’s motion in this case was made orally during the session of court at which the case was calendared. This form of motion is clearly permitted by Rule 7.
An oral motion such as the one made by plaintiff is not subject to the actual notice requirement of Rule 6(d) which requires that
written
motions be served at least five days prior to the date set for the hearing on the motion.
Sims v. Oakwood Trailer Sales Corp.,
18 N.C. App. 726, 731, 198 S.E. 2d 73,
cert. denied,
283 N.C. 754, 198 S.E. 2d 723 (1973). This conclusion is made even clearer by comparing North Carolina’s Rule 7 with the similar federal provision. The North Carolina r-ule excepts “from the requirement that they be in writing motions made ‘at a session at which a
cause is on the calendar for that session,’ whereas the Federal Rule contains no such language. . . Shuford,
North Carolina Civil Practice and Procedure
§ 7.1 at 56 (1975).
This change in the wording of Rule 7 clearly allows the continuation of the pre-rules practice under which oral motions to which no actual notice provision applied were allowed in an action during the session of court at which it was regularly calendared. This conclusion is bolstered by the editorial comment appended to Rule 7(b)(1). It states that this portion of the rule is intended to make “explicit as a matter of literal statement the motion practice actually followed” prior to the adoption of the rules.
We therefore hold that where an oral motion is appropriately made under Rule 7, the doctrine that a party to an action has constructive notice of all orders and motions made in the cause during the session of court at which the cause is regularly calendared is preserved in Rules 6 and 7 of the North Carolina Rules of Civil Procedure. Thus, in the case at bar defendant was charged with constructive notice of plaintiffs motion for relief from the judgment entered in the action. Actual notice to defendant was not required.
Defendant argues one other contention with regard to the procedure by which plaintiff’s motion was made. He contends that her motion did not comply with Rule 6 of the Rules of Practice for Superior and District Courts adopted by this Court pursuant to G.S. 7A-34 and promulgated in 276 N.C. 735 (1970). This rule provides, among other things, that “[a]ll motions, written or oral, shall state the rule number or numbers under which the movant is proceeding”.
The record does not contain plaintiff’s motion and it is difficult to ascertain whether the grounds for the motion were adequately stated. Nevertheless, we do not think this defect fatal.
See: Lehrer v. Edgecombe Manufacturing Co.,
13 N.C. App. 412, 185 S.E. 2d 727 (1972);
Long v. Coble,
11 N.C. App. 624, 182 S.E. 2d 234,
cert. denied,
279 N.C. 395, 183 S.E. 2d 246 (1971);
contra, Sherman v. Myers,
29 N.C. App. 29, 222 S.E. 2d 749 (1976). The directive of this rule of practice has the salutory purpose of ensuring that the court and the parties are aware of the grounds upon which the movant is relying. The court’s order in this case indicates that the judge was fully aware of the basis for plaintiff’s
motion. It states that “upon motion of counsel for the plaintiff showing that errors have been committed in the complaint filed in this action in behalf of the plaintiff, and the Court, in its discretion, finds that the judgment heretofore entered in this action should be stricken.” Because this awareness of the grounds upon which plaintiff’s motion was made has been shown, we conclude that the motion was adequately stated.
Finally, we conclude that the trial court properly exercised its discretion in relieving plaintiff from the judgment. Rule 60(b)(1) allows the court to grant a party relief on the basis of “[mistake, inadvertence, surprise, or excusable neglect.” Excusable neglect is present in this case.
It has long been the rule in this state that a party may be relieved from a judgment rendered against him as a result of the negligence of his attorney if the litigant himself is not at fault.
Moore v. WOOW, Inc.,
250 N.C. 695, 110 S.E. 2d 311 (1959);
Moore v. Deal,
239 N.C. 224, 79 S.E. 2d 507 (1954);
Stallings v. Spruill,
176 N.C. 121, 96 S.E. 890 (1918);
Seawell v. Lumber Co.,
172 N.C. 320, 90 S.E. 241 (1916);
Schiele v. Insurance Co.,
171 N.C. 426, 88 S.E. 764 (1916);
Norton v. Sawyer,
30 N.C. App. 420, 227 S.E. 2d 148,
cert. denied,
291 N.C. 176, 229 S.E. 2d 689 (1976);
Kirby v. Asheville Contracting Co., Inc.,
11 N.C. App. 128, 180 S.E. 2d 407,
cert. denied,
278 N.C. 701, 181 S.E. 2d 602 (1971). These cases are readily distinguished from those where relief on the basis of excusable neglect has been denied when the party has himself been inattentive to his action.
See, e.g., Johnson v. Sidbury,
225 N.C. 208, 34 S.E. 2d 67 (1945).
The rule which we have cited has been employed most often to relieve a defendant with a meritorious defense from a default judgment. However, Rule 60(b) provides that relief may be granted to “any party” and raises no bar to granting relief to a successful plaintiff when adequate reason is shown. Shuford,
supra
§ 60-4 at 507; Moore,
supra
¶ 60.01 at 4009.
In the case
sub judice
the record indicates that plaintiff did everything she reasonably could do to bring her case before the court. She employed a reputable local attorney who was licensed to practice in this state. She told him that she wanted a divorce because her husband had committed adultery and had left her.
Further, she explained to her attorney that she and the defendant had already consented to a judgment for alimony in a prior action.
The attorney negligently filed a complaint for divorce based on one year’s separation. Had the judgment based on this complaint not been vacated, plaintiff would have been deprived of the benefit of her alimony decree. The negligence of counsel on these, facts cannot be attributed to plaintiff even though she verified the complaint which was filed. The facts stated therein were, insofar as she knew, true and sufficient to bring her action. A non-lawyer cannot be held to know what allegations must be pled in a complaint in order to prove at trial those facts which have been communicated to an attorney.
For the reasons stated, the decision of the Court of Appeals is reversed. Consequently, the trial court’s order vacating the divorce judgment is in full force and effect and plaintiff’s voluntary dismissal terminates the action.
Reversed.