{ "id": 8547933, "name": "ENGINES & EQUIPMENT, INC. v. JOE LIPSCOMB", "name_abbreviation": "Engines & Equipment, Inc. v. Lipscomb", "decision_date": "1972-06-28", "docket_number": "No. 7210DC327", "first_page": "120", "last_page": "123", "citations": [ { "type": "official", "cite": "15 N.C. App. 120" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "34 S.E. 2d 67", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1945, "opinion_index": 0 }, { "cite": "225 N.C. 208", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8603499 ], "year": 1945, "opinion_index": 0, "case_paths": [ "/nc/225/0208-01" ] }, { "cite": "177 S.E. 2d 332", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "pin_cites": [ { "page": "333" } ], "opinion_index": 0 }, { "cite": "9 N.C. App. 640", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553267 ], "year": 1970, "pin_cites": [ { "page": "642-643" } ], "opinion_index": 0, "case_paths": [ "/nc-app/9/0640-01" ] }, { "cite": "275 N.C. 137", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8557965, 8557935, 8558001, 8557916, 8557950, 8557983 ], "year": 1969, "opinion_index": 0, "case_paths": [ "/nc/275/0137-04", "/nc/275/0137-02", "/nc/275/0137-06", "/nc/275/0137-01", "/nc/275/0137-03", "/nc/275/0137-05" ] }, { "cite": "164 S.E. 2d 511", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "pin_cites": [ { "page": "515" } ], "opinion_index": 0 }, { "cite": "3 N.C. App. 235", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554468 ], "year": 1968, "pin_cites": [ { "page": "240-241" } ], "opinion_index": 0, "case_paths": [ "/nc-app/3/0235-01" ] }, { "cite": "184 S.E. 2d 879", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "280 N.C. 106", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569959 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc/280/0106-01" ] } ], "analysis": { "cardinality": 396, "char_count": 7386, "ocr_confidence": 0.518, "pagerank": { "raw": 3.961935794907266e-07, "percentile": 0.9043079345552578 }, "sha256": "eeb8332cee0a8c9c9bf3a6c056b197e38e48d4580bf1684bda79d89090884903", "simhash": "1:a00d3001068c2d43", "word_count": 1240 }, "last_updated": "2023-07-14T17:26:51.335715+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge Mallard and Judge Campbell concur." ], "parties": [ "ENGINES & EQUIPMENT, INC. v. JOE LIPSCOMB" ], "opinions": [ { "text": "BEITT, Judge.\nDefendant\u2019s exceptions and assignments of error 2, 3, 4 and 5, relating to the order entered on 11 January 1972, are not supported in his brief by reason, argument or authority, therefore, said exceptions and assignments of error are deemed abandoned. Eule 28, Eules of Practice in the Court of Appeals of North Carolina. Furthermore, since notice of appeal was given and appeal entries made on 30 November 1971, the trial court was without authority to consider defendant\u2019s motion filed on 6 December 1971. Wiggins v. Bunch, 280 N.C. 106, 184 S.E. 2d 879 (1971).\nThe sole question before us is whether the trial court erred in concluding that defendant failed to show excusable neglect and in denying defendant\u2019s motion to set aside the default judgment.\nWhether excusable neglect has been shown is a question of law, not a question of fact. \u201c \u2018Upon the facts found the court determines, as a matter of law, whether or not they constitute excusable neglect, . . . . \u2019 McIntosh, N. C. Practice 2d, \u00a7 1717.\u201d Ellison v. White, 3 N.C. App. 235, 240-241, 164 S.E. 2d 511, 515 (1968), cert. den. 275 N.C. 137 (1969).\nIn the case at bar, the court\u2019s findings of fact included the following (summarized) : On or about 18 March 1971 defendant\u2019s wife was served with summons and complaint in this cause. Defendant was a long distance truck driver and between 18 March 1971 and 28 March 1971 was transporting materials from North Carolina to California. On or about 5 April 1971 defendant delivered his copy of the summons and complaint to an official of his employer who agreed to deliver the same to an attorney who would defend the action for defendant. Said official thereafter advised defendant that the suit papers had been delivered to an attorney and that an answer denying the material allegations of the complaint had been filed. The representation the official made to defendant was false and no answer was filed on behalf of defendant.\nWe hold that as a matter of law the facts found by the trial judge do not constitute excusable neglect under G.S. 1A-1, Rule 60(b) (1).\nThis case is analogous to Rawleigh, Moses & Co. v. Furniture, Inc., 9 N.C. App. 640, 642-643, 177 S.E. 2d 332, 333 (1970), a case that resulted in a finding of no excusable neglect, in which we said: \u201cA review of appellee\u2019s motion and affidavit impels us to conclude that appellee did not make out a case of excusable neglect any stronger than, if as strong as, the defendant made out in Johnson v. Sidbury, 225 N.C. 208, 34 S.E. 2d 67 (1945). In that case, our Supreme Court upheld a default judgment rendered against the defendant, a medical doctor, which judgment was rendered when the defendant was under the pressure of adverse circumstances and unending demands for his professional services. We quote from the opinion as follows: \u2018While his inattention and neglect are attributed to the similarity in the title of this case to a former action, and to his preoccupation in the duties of his profession, commendable and highly important though they were, we do not think this should be held in law to constitute such excusable neglect as would relieve an intelligent and active businessman from the consequences of his inattention, as against diligent suitors proceeding in accordance with the provisions of the statute.\u2019 \u201d\nParties who have been duly served with summons are required to give their defense that attention which a man of ordinary prudence usually gives his important business, and failure to do so is not excusable. 5 Strong, N.C. Index 2d, Judgments, \u00a7 25, pp. 46-47. We agree with the trial court\u2019s conclusion that defendant herein did not meet this test.\nAffirmed.\nChief Judge Mallard and Judge Campbell concur.", "type": "majority", "author": "BEITT, Judge." } ], "attorneys": [ "Thompson and Lynn by Dan Lynn for plaintiff appellee.", "Philip O. Redwine for defendant appellant." ], "corrections": "", "head_matter": "ENGINES & EQUIPMENT, INC. v. JOE LIPSCOMB\nNo. 7210DC327\n(Filed 28 June 1972)\n1. Appeal and Error \u00a7 45\u2014 abandonment of assignments of error\nExceptions and assignments of error not supported in the brief by reason, argument or authority are deemed abandoned. Court of Appeals Rule 28.\n2. Appeal and Error \u00a7 16\u2014 motion after appeal taken \u2014 authority of trial court\nThe trial court was without authority to consider defendant\u2019s motion to set aside a default judgment filed after notice of appeal had been given and appeal entries had been entered.\n3. Judgments \u00a7 24\u2014 excusable neglect \u2014 question of law\nWhether excusable neglect has been shown is a question of law, not a question of fact.\n4. Judgments \u00a7 25; Rules of Civil Procedure \u00a7 60\u2014 excusable neglect \u2014 delivery of suit papers to employer \u2014 employer\u2019s representation that answer had been filed\nDefendant was not entitled to have a default judgment against him set aside on the ground of excusable neglect where defendant delivered the summons and complaint to an official of his employer, who agreed to deliver them to an attorney who would defend the action for defendant, the official thereafter advised defendant that the suit papers had been delivered to an attorney and that answer denying the material allegations of the complaint had been filed, but the representation the official made to defendant was false and no answer was filed on defendant\u2019s behalf.\n5. Judgments \u00a7 25\u2014 attention to defense \u2014 excusable neglect\nParties who have been duly served with summons are required to give their defense that attention which a man of ordinary prudence usually gives his important business, and failure to do so is not excusable.\nAppeal by defendant from Preston, District Judge, 80 November 1971 Civil Session of Wake District Court.\nOn 17 March 1971 plaintiff instituted this action seeking to recover judgment against defendant for $1,686.75 plus interest, allegedly due plaintiff for labor and parts furnished in repairing defendant\u2019s equipment. No defense pleading having been filed, on 21 April 1971 at the request of plaintiff the Assistant Clerk of Wake Superior Court entered a default judgment against defendant. On 5 August 1971 Judge Preston signed an order granting defendant\u2019s motion (filed 5 August 1971) to set aside the default judgment on the grounds of excusable neglect under G.S. 1A-1, Eule 60(b) (1) and allowing him fifteen days to file answer. On 11 August 1971 plaintiff moved to vacate the 5 August 1971 order, alleging that plaintiff had no notice of defendant\u2019s motion to set aside the default judgment until 8 August 1971. Pursuant to G.S. 1A-1, Eule 60(b) (1) on 21 October 1971 Judge Preston, on the ground of surprise, vacated his order of 5 August 1971 but ordered execution of the judgment stayed pending a final determination of the cause. On 30 November 1971 Judge Preston entered an order concluding that defendant\u2019s actions following the service of summons and complaint on him did not constitute excusable neglect and denied the motion to set aside the default judgment. Defendant gave notice of appeal from this order and appeal entries were made on 30 November 1971.\nAfter the appeal was taken on 30 November 1971 defendant on 6 December 1971 moved the court to set aside the default judgment on the grounds that plaintiff\u2019s cause of action is not in a sum certain as contemplated by G.S. 1A-1, Eule 55(b) (1). This motion was heard on 6 January 1972 and on 11 January 1972 Judge Preston entered an order denying the motion to which order defendant also noted an appeal.\nThompson and Lynn by Dan Lynn for plaintiff appellee.\nPhilip O. Redwine for defendant appellant." }, "file_name": "0120-01", "first_page_order": 144, "last_page_order": 147 }