{
  "id": 8550642,
  "name": "DAN L. GREGG v. J. B. STEELE and EVELYN GORE STEELE",
  "name_abbreviation": "Gregg v. Steele",
  "decision_date": "1974-12-18",
  "docket_number": "No. 745DC660",
  "first_page": "310",
  "last_page": "311",
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    {
      "cite": "11 N.C. App. 128",
      "category": "reporters:state",
      "reporter": "N.C. App.",
      "case_ids": [
        8553129
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  "last_updated": "2023-07-14T19:54:40.635509+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
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  "casebody": {
    "judges": [
      "Judges Britt and Hedrick concur."
    ],
    "parties": [
      "DAN L. GREGG v. J. B. STEELE and EVELYN GORE STEELE"
    ],
    "opinions": [
      {
        "text": "MARTIN, Judge.\nG.S. 1A-1, Rule 55(d) provides that \u201c[f]or good'cause shown the court may set aside an entry of default, and, if a judgment by default has been entered, the judge may set it aside in accordance with Rule 60(b).\u201d Plaintiff contends the trial court erred in setting aside the default judgment, because there was insufficient evidence from which the court could find excusable neglect on the defendants\u2019 part.\nDefendants\u2019 testimony and J. B. Steele\u2019s affidavit indicate that Evelyn Steele received a summons and complaint which she turned over to her husband, J. B. Steele. That same day, J. B. Steele went to the office of plaintiff\u2019s attorney and stated that he did not owe plaintiff any money. Being inexperienced in legal matters, J. B. Steele did not employ an attorney and did not file an answer. He thought he would be notified when to appear for trial.\nA party may be relieved from a final judgment for mistake, inadvertence, surprise, or excusable neglect. G.S. 1A-1, Rule 60(b) (1). \u201cRule 60(b) (1) replaces former G.S. 1-220, and the cases interpreting it are still applicable.\u201d Kirby v. Contracting Co., 11 N.C. App. 128, 180 S.E. 2d 407 (1971). Since defendant J. B. Steele knew he had been sued on a note, this case is distinguishable from Shackleford v. Taylor, 261 N.C. 640, 135 S.E. 2d 667 (1964) where the legal inexperience of a defaulting party was an important factor. \u201cParties 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.\u201d 5 Strong, N. C. Index 2d, Judgments, \u00a7 25, p. 46-47. If a party\u2019s neglect of a lawsuit is excusable simply because that party has no attorney, has never been involved in a lawsuit before, and lacks knowledge of when the case will come up for trial then the term \u201cexcusable neglect\u201d has little meaning. Therefore, we hold that J. B. Steele has not shown \u201cexcusable neglect\u201d on his part.\n\u201c[A] wife\u2019s failure or neglect to file answer in a suit against her and her husband, upon assurances by her husband that he will be responsible for and assume the defense of the action, is excusable neglect.\u201d Abernathy v. Nichols, 249 N.C. 70, 105 S.E. 2d 211 (1958). In the present case, there is nothing to indicate that Evelyn Steele neglected to file an answer upon assurances by her husband that he would be responsible for the defense of the action. Thus, her neglect has not been shown to be excusable.\nFor the reasons stated, the order appealed from is\nReversed.\nJudges Britt and Hedrick concur.",
        "type": "majority",
        "author": "MARTIN, Judge."
      }
    ],
    "attorneys": [
      "Harold P. Laing for plaintiff appellant.",
      "No counsel contra."
    ],
    "corrections": "",
    "head_matter": "DAN L. GREGG v. J. B. STEELE and EVELYN GORE STEELE\nNo. 745DC660\n(Filed 18 December 1974)\n1. Rules of Civil Procedure \u00a7 60 \u2014 setting aside default judgment \u2014 no showing of excusable neglect\nTrial court erred in setting aside default judgment against the male defendant based on excusable neglect where the evidence tended to show that the female defendant received a summons and complaint which she turned over to her husband, the male defendant went to plaintiff\u2019s attorney on the same day and stated that he did not owe plaintiff any money, and the male defendant, being inexperienced in legal matters, did not employ an attorney or file an answer,'1 but simply assumed he would be notified when to appear for trial.\n2. Rules of Civil Procedure \u00a7 60 \u2014 no excusable neglect by wifesetting aside default judgment improper\nThe trial court erred in setting aside default judgment against the female defendant based on excusable neglect where there was ;ho evidence that she neglected to file an answer upon assurances \u2022 by her husband that he would be responsible for the defense of the; action.\nAppeal by plaintiff from Barefoot, Judge, 25 March,>4974 Session of District Court held in New Hanover County.-,Heard in the Court of Appeals on 13 November 1974.\nPlaintiff brought an action to recover a sum certain allegedly due on a note executed by defendants. Defendants \u00a1failed to plead and the clerk of court entered a default against .them. After entry of default the clerk entered judgment by default,for the sum certain. Several months later defendants obtained an order by Judge Barefoot setting aside the default judgment.\nPlaintiff appealed.\nHarold P. Laing for plaintiff appellant.\nNo counsel contra."
  },
  "file_name": "0310-01",
  "first_page_order": 338,
  "last_page_order": 339
}