{
  "id": 8552149,
  "name": "JIM WALTER HOMES, INC. v. WILLIE HERMAN PEARTREE",
  "name_abbreviation": "Jim Walter Homes, Inc. v. Peartree",
  "decision_date": "1976-03-17",
  "docket_number": "No. 752DC756",
  "first_page": "709",
  "last_page": "712",
  "citations": [
    {
      "type": "official",
      "cite": "28 N.C. App. 709"
    }
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  "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": "178 S.E. 2d 446",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1971,
      "opinion_index": 0
    },
    {
      "cite": "277 N.C. 720",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8567654
      ],
      "year": 1971,
      "opinion_index": 0,
      "case_paths": [
        "/nc/277/0720-01"
      ]
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  "last_updated": "2023-07-14T22:58:46.500479+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "Judge Clark concurs.",
      "Judge Vaughn concurs in the result."
    ],
    "parties": [
      "JIM WALTER HOMES, INC. v. WILLIE HERMAN PEARTREE"
    ],
    "opinions": [
      {
        "text": "MARTIN, Judge.\nPlaintiff contends the trial court erred in entering an order granting a new trial.\nPlaintiff argues that under G.S. 7A-192 Judge Manning had no power to rule on defendant\u2019s motion because he had not been authorized in writing to hear motions and enter interlocutory orders. G.S. 7A-192 provides, in relevant part:\n\u201cAny district judge may hear motions and enter interlocutory orders in causes regularly calendared for trial or for the disposition of motions, at any session to which the district judge has been assigned to preside. The chief district judge and any district judge designated by written order or rule of the chief district judge, may in chambers hear motions and enter interlocutory orders in all causes pending in the district courts of the district. ...\u201d (Emphasis added.)\nIn other words, a district judge other than the chief district judge may hear motions and enter interlocutory orders during any session over which he has been assigned to preside, whether the assignment be oral or written, but he may not hear motions in chambers without written authorization.\nThe record shows that defendant\u2019s motion was heard \u201c [b] efore Manning, J.,. June 9, 1975 Session of Beaufort County, the General Court of Justice, District Court Division,\u201d and that Judge Manning had been assigned to this session orally. The motion was not heard in chambers. Judge Manning was thus authorized to hear motions and enter interlocutory orders during the session over which he had been assigned to preside whether the assignment be oral or in writing.\nPlaintiff contends there was no excusable neglect sufficient to grant a new trial. Rule 60(b) of the North Carolina Rules of Civil Procedure provides:\n\u201cOn 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:\n(1) Mistake, inadvertence, surprise, or excusable neglect;\n(6) Any other reason justifying relief from the operation of the judgment.\u201d\nRule 60(b) has been described as \u201c ... a grand reservoir of equitable power to do justice in a particular case. ...\u201d 7 Moore\u2019s Federal Practice, \u00b6 60.27 [2], at 375. The North Carolina Supreme Court has stated that its \u201cbroad language . . . \u2018gives the court ample power to vacate judgments whenever such action is appropriate to accomplish justice.\u2019 \u201d Brady v. Town of Chapel Hill, 277 N.C. 720, 178 S.E. 2d 446 (1971).\nIt is our opinion, and we so hold, that there is plenary competent evidence to support the findings of fact, which in turn support the conclusion that the failure of attorney Woolard to appeal to the court for a continuance upon receipt of the statement of Dr. Shapiro constituted neglect on the part of said attorney which is not imputable to the defendant, and that defendant had a meritorious defense. The judgment appealed from is\nAffirmed.\nJudge Clark concurs.\nJudge Vaughn concurs in the result.",
        "type": "majority",
        "author": "MARTIN, Judge."
      },
      {
        "text": "Judge Vaughn\nconcurring.\nI concur in the result of this opinion. Although there was some testimony from which the judge could have concluded that defendant\u2019s failure to appear at trial was excusable, there is not a scintilla of evidence to indicate that his counsel, Mr. Woolard, neglected the case. Instead, it affirmatively appears from the record that Mr. Woolard went to great lengths to protect a procrastinating client.",
        "type": "concurrence",
        "author": "Judge Vaughn"
      }
    ],
    "attorneys": [
      "W. Faison Barnes and Anthony L. Giordano, for plaintiff appellant.",
      "John H. Harmon, for defendant appellee."
    ],
    "corrections": "",
    "head_matter": "JIM WALTER HOMES, INC. v. WILLIE HERMAN PEARTREE\nNo. 752DC756\n(Filed 17 March 1976)\n1. Courts \u00a7 11.1 \u2014 district court \u2014 authority to hear motions and enter interlocutory orders\nA district court judge had authority to hear motions and enter interlocutory orders during the session over which he had been assigned to preside whether the assignment was oral or in writing. G.S. 7A-192.\n2. Judgments \u00a7 25; Rules of Civil Procedure \u00a7 60 \u2014 setting aside judgment\u2014 excusable neglect \u2014 illness of defendant \u2014 attorney\u2019s failure to ask for continuance\nFailure of defendant\u2019s attorney immediately to appeal to the court for a continuance upon receipt of a doctor\u2019s statement that defendant was unable to appear in court on the date of the trial constituted neglect not imputable to defendant which was sufficient to support an order under Rule 60(b)(1) setting aside the judgment against defendant.\nJudge Vaughn concurring in result.\nAppeal by plaintiff from Manning, Judge. Judgment entered 9 June 1975 in District Court, Beaufort County. Heard in the Court of Appeals 19 January 1976.\nPlaintiff alleged in its complaint that it had entered into a contract to build a house for defendant for $8,325. Defendant had paid $4,225 and was indebted to plaintiff for $4,100. Defendant answered, admitting that he had agreed to pay $8,325 for building a house and had paid only $4,225, but denied that he was liable for the remaining $4,100. He alleged that the house built by plaintiff was defective in numerous ways. The case was tried on 6 and 7 May 1974 and plaintiff obtained judgment for $4,100. On 8 April 1975 defendant moved to vacate the judgment and that he be granted a new trial.\nAt the hearing on defendant\u2019s motion attorney Frazier T. Woolard testified in substance as follows: He represented defendant at the 1974 trial. Defendant\u2019s case was originally scheduled for trial in March 1974 and he obtained a continuance for the defendant on the ground that defendant was ill. He wrote to defendant and told him that the case had been rescheduled for Monday, May 6. On the morning of Friday, May 8, Woolard received a letter dated 1 May 1974 from Dr. Myer Shapiro in New York, stating that defendant was under medical treatment for acute lumbo-sacral sprain with sciatica and would not be able to appear in court on May 6th. Woolard did not do anything about this matter until Monday, May 6. On Monday, he moved for a continuance and the motion was denied because several of plaintiff\u2019s witnesses had traveled to North Carolina from out of state for the trial. On Monday afternoon he telephoned defendant to tell him that the case was being tried in his absence. On Tuesday afternoon, after the trial was over, defendant came into Woolard\u2019s office and appeared to be in excellent physical condition. He walked quickly and without assistance.\nDefendant testified in substance as follows: In May 1974 he was living in New York and suffering from severe back trouble. He arranged for Dr. Shapiro to write and notify Wool-ard that he could not appear in court on May 6. On May 6 he received medical treatment in Dr. Shapiro\u2019s office. When he returned home from the doctor\u2019s office he found that Woolard had telephoned and left word that the trial was under way. He then had three of his friends and relatives drive him to North Carolina during the night of May 6 and 7. On the afternoon of May 7 he met with Woolard and at this time he was not in good physical condition; he could not even walk without assistance.\nAt the conclusion of the hearing the court made extensive findings of fact, summarized above, and concluded that the failure of defendant\u2019s attorney to move for a continuance after receipt of a letter from defendant\u2019s physician constituted neglect.\nFrom the judgment vacating the judgment of 7 May 1974 and ordering a new trial, plaintiff appealed.\nW. Faison Barnes and Anthony L. Giordano, for plaintiff appellant.\nJohn H. Harmon, for defendant appellee."
  },
  "file_name": "0709-01",
  "first_page_order": 737,
  "last_page_order": 740
}