{
  "id": 8553858,
  "name": "FRED SHERMAN, JR. v. J. D. MYERS AND BETTY T. MYERS",
  "name_abbreviation": "Sherman v. Myers",
  "decision_date": "1976-03-17",
  "docket_number": "No. 7521SC851",
  "first_page": "29",
  "last_page": "31",
  "citations": [
    {
      "type": "official",
      "cite": "29 N.C. App. 29"
    }
  ],
  "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": [],
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  "last_updated": "2023-07-14T16:29:22.308082+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "Judges Britt and Hedrick concur."
    ],
    "parties": [
      "FRED SHERMAN, JR. v. J. D. MYERS AND BETTY T. MYERS"
    ],
    "opinions": [
      {
        "text": "MARTIN, Judge.\nDefendants first contend the court erred by failing to consider the merits of the defendants\u2019 motion pursuant to Rule 60 and, secondly, that the court erred in failing to make a proper or sufficient finding of fact in its order denying defendants\u2019 motion.\nRule 6 of the General Rules of Practice for the Superior Court, Supplemental to the Rules of Civil Procedure, provides in part, \u201cAll motions, written or oral, shall state the rule number, or numbers under which the movant is proceeding.\u201d\nDefendants\u2019 motion makes no mention of Rule 60 of the Rules of Civil Procedure nor does it set forth any of the reasons enumerated in the Rule as grounds for relief from the summary judgment. It merely sets forth the defendants\u2019 contentions concerning the controversy and the chronology of the occurrences leading up to the entry of the summary judgment and subsequent thereto. It was therefore not procedurally permissible for Judge Seay to entertain the motion. It is apparent that the court did not understand on what theory the defendants were proceeding by the following comment which is a part of the record, to wit:\n\u201cI just never heard of it before. It looks to me if you have a remedy at all it would be to seek certiorari to the Court of Appeals. I would be very reluctant about upsetting Judge Exum\u2019s judgment. I wasn\u2019t here, didn\u2019t hear the case argued before Judge Exum. I don\u2019t know what he considered at all.\u201d\nWhile it is true that Judge Seay was aware that defendants were attempting to proceed pursuant to Rule 60, he was not required to hear and pass upon the motion which failed to state either the rule upon which they were proceeding or the specific grounds upon which they sought relief. We therefore treat his denial of the motion as a dismissal and affirm the order.\nAffirmed.\nJudges Britt and Hedrick concur.",
        "type": "majority",
        "author": "MARTIN, Judge."
      }
    ],
    "attorneys": [
      "Badgett, Calaway, Phillips and Davis, by Richard G. Badgett, for plaintiff appellee.",
      "A. Carl Penney, for defendant appellants."
    ],
    "corrections": "",
    "head_matter": "FRED SHERMAN, JR. v. J. D. MYERS AND BETTY T. MYERS\nNo. 7521SC851\n(Filed 17 March 1976)\nRules of Civil Procedure \u00a7 60\u2014 motion to set aside summary judgment \u2014 failure to state rule and grounds\nDefendants\u2019 motion to set aside summary judgment against them was properly dismissed by the trial court where defendants stated neither the rule upon which they were proceeding nor the specific grounds upon which they sought relief.\nAppeal by defendants from Seay, Judge. Order entered 21 July 1975 in Superior Court, Forsyth County. Heard in the Court of Appeals 12 February 1976.\nPlaintiff filed complaint seeking to recover on a $15,000 note given to him by defendants. Six months later, defendants answered and denied all material allegations. The answer was prepared by attorney Harrell Powell, Jr. Defendants answered plaintiff\u2019s interrogatories admitting that their signatures were on the note, that they had made only one payment, and that demand had been made upon them by plaintiff.\nPlaintiff moved for summary judgment which was allowed by the court on 8 November 1974.\nOn 10 April 1975 defendants, represented by attorney Robert M. Bryant, moved to have the summary judgment set aside. They submitted affidavits to the effect that they had originally employed attorney G. Ray Motsinger to defend them; that Motsinger had been suspended from the practice of law and had turned the case over to attorney Powell without their consent or knowledge; that Powell had not consulted with them before filing the answer; that they had only met Powell when they signed their answers to plaintiff\u2019s interrogatories and that they had assumed that he was merely assisting attorney Motsinger; that they had not been notified of the summary judgment; and that they had no knowledge of the summary judgment until sometime in January of 1975. The affidavits also tended to show that defendants had a defense which was not pleaded: the defendants intended to sign the note as corporate officers, not as individuals. Powell\u2019s affidavit stated that he had always considered the case to be attorney Motsinger\u2019s and that Motsinger had instructed him not to assert all possible defenses against plaintiff.\nA hearing was held before Judge Seay on 21 July 1975. From Judge Seay\u2019s order denying defendants\u2019 motion, defendants appealed.\nBadgett, Calaway, Phillips and Davis, by Richard G. Badgett, for plaintiff appellee.\nA. Carl Penney, for defendant appellants."
  },
  "file_name": "0029-01",
  "first_page_order": 61,
  "last_page_order": 63
}