{
  "id": 8554295,
  "name": "MAYHEW ELECTRIC COMPANY v. GEORGE CARRAS, d/b/a CARRAS REALTY COMPANY",
  "name_abbreviation": "Mayhew Electric Co. v. Carras",
  "decision_date": "1976-04-07",
  "docket_number": "No. 7526DC992",
  "first_page": "105",
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    "name_abbreviation": "N.C. Ct. App.",
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    "name": "North Carolina Court of Appeals"
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    "name_long": "North Carolina",
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      "reporter": "S.E.2d",
      "year": 1972,
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          "page": "287"
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      "cite": "281 N.C. 269",
      "category": "reporters:state",
      "reporter": "N.C.",
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      "year": 1972,
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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 Clark concur."
    ],
    "parties": [
      "MAYHEW ELECTRIC COMPANY v. GEORGE CARRAS, d/b/a CARRAS REALTY COMPANY"
    ],
    "opinions": [
      {
        "text": "PARKER, Judge.\nIn their brief, plaintiff\u2019s attorneys contend \u201cthat the defendant has produced no competent evidence to form a basis of the findings of facts and conclusions of law concerning his having a meritorious defense or his neglect being excusable.\u201d However, the question of the sufficiency of the evidence to support the court\u2019s findings is not before us on this appeal. Plaintiff has made but one assignment of error as follows:\n\u201c1. The Trial Court erred in granting defendant\u2019s Motion for Relief from Final Judgment.\nPlaintiff\u2019s Exception No. 1 (Rp22)\u201d\nThe only exception in the record is plaintiff\u2019s Exception No. 1 which appears at the end of the order appealed from. \u201cThis broadside exception does not bring up for review the sufficiency of the evidence to support any particular finding of fact. It presents these questions only: (1) Do the facts found support the judgment, and (2) does error of law appear on the face of the record.\u201d City of Kings Mountain v. Cline, 281 N.C. 269, 274, 188 S.E. 2d 284, 287 (1972). This long established rule has been brought forward in the new Rules of Appellate Procedure adopted by our Supreme Court on 13 June 1975 effective with respect to all appeals in which notice of appeal was given on and after 1 July 1975. Rule 10(b) (2) contains the following: \u201cA separate exception shall be set out to the making or omission of each finding of fact or conclusion of law which is to be assigned as error.\u201d\nThe facts found do support the order appealed from. \u201cWhere a defendant engages an attorney and thereafter diligently confers with the attorney and generally tries to keep informed as to the proceedings, the negligence of the attorney will not be imputed to the defendant.\u201d Jones v. Fuel Co., 259 N.C. 206, 209, 130 S.E. 2d 324, 327 (1963). Here, the court expressly found that defendant was diligent in communicating with his attorneys and providing them with information necessary to prepare answer. Furthermore, the court found that the neglect of the attorneys in failing to file answer within apt time was both excusable and was not to be imputed to defendant. These findings, coupled with the Court\u2019s finding that defendant has a meritorious defense, fully support the order entered. Error of law does not appear on the face of the record.\nSince the order was fully supported by the facts found as noted above, we find it unnecessary to consider and do not pass upon the additional ground upon which the Court rested its order, that by virtue of the communications which had taken place between the attorneys for the parties in this case the defendant had \u201cappeared\u201d in this action within the meaning of G.S. 1A-1, Rule 55 (b) (2) and for that reason defendant should have been served with written notice of the application for the default judgment at least three days prior to the hearing on such application.\nThe order appealed from is\nAffirmed.\nJudges Britt and Clark concur.",
        "type": "majority",
        "author": "PARKER, Judge."
      }
    ],
    "attorneys": [
      "Whitfield, McNeely, Norwood and Badger by David R. Badger for plaintiff appellant.",
      "Echols, Purser and Adams, P.A. by Thad Adams, III for defendant appellee."
    ],
    "corrections": "",
    "head_matter": "MAYHEW ELECTRIC COMPANY v. GEORGE CARRAS, d/b/a CARRAS REALTY COMPANY\nNo. 7526DC992\n(Filed 7 April 1976)\nJudgments \u00a7\u00a7 25, 29 \u2014 entry of judgment by default \u2014 setting aside on ground of excusable neglect\nIn an action to recover the balance due on a contract for labor and materials furnished by plaintiff where judgment by default was entered against defendant who had failed to file an answer, evidence was sufficient to support the trial court\u2019s order setting aside the judgment by default on the ground of excusable neglect, since the defendant was diligent in communicating with his attorneys and providing them with information necessary to prepare answer, the neglect of the attorneys to file answer within apt time was both excusable and was not to be imputed to defendant, and defendant had a meritorious defense to plaintiff\u2019s claim.\nAppeal by plaintiff from Stukes, Judge. Order entered 9 October 1975 in District Court, Mecklenburg County. Heard in the Court of Appeals 18 March 1975.\nOn 12 December 1974 plaintiff filed complaint seeking recovery of $3,884.03 as balance due on a contract under which plaintiff performed labor and furnished materials for installation of electrical wiring and devices in a building owned by defendant. Summons and complaint were served on defendant on 17 December 1974. No answer having been filed, on 24 January 1975 entry of default and judgment by default were entered against defendant.\nOn 31 January 1975 defendant filed a motion pursuant to G.S. 1A-1, Rule 60(b) to set aside the judgment by default on the grounds of excusable neglect. With this motion defendant filed answer to the complaint in which he denied material allegations in the complaint and alleged that plaintiff had contracted for performance of the electrical work with a tenant in a building owned by a corporation in which defendant is a shareholder, director, and officer. In support of his motion defendant filed affidavits of two attorneys who were members of the law firm which represented defendant. In substance these affidavits state that on 18 December 1974 defendant contacted his attorneys regarding this case and immediately thereafter forwarded to them the summons and complaint with information for filing of answer; on 16 January 1975 one of defendant\u2019s attorneys saw the plaintiff\u2019s attorney in the Meck-lenburg County Courthouse and asked plaintiff\u2019s attorney for two or more weeks in which to file answer; plaintiff\u2019s attorney advised he would grant an extension and defendant\u2019s attorney left the meeting under the impression defendant would be given an extension of at least two weeks; thereafter plaintiff\u2019s attorney wrote a letter to defendant\u2019s attorney in which he extended the time for filing answer for only one week, through and including 28 January 1975; the attorney who received this letter was in process of becoming disassociated from the law firm and negligently failed to communicate the letter to the remaining members of the firm in apt time for them to file answer within the seven day extension; and during all periods of time alleged the defendant was in constant contact with his attorneys concerning the matter and had several conferences in preparation for filing an answer. In opposition to defendant\u2019s motion, plaintiff filed affidavit of his attorney in which this affiant stated that defendant\u2019s attorney saw him in the courthouse approximately one day before the 30th day from the date of service on defendant and stated he needed five or seven days within which to file responsive pleadings, that plaintiff\u2019s attorney then immediately advised defendant\u2019s attorney that he had seven days within which to file responsive pleadings, and that this was confirmed by letter dated 17 January 1975 confirming the one week extension.\nAfter a hearing on defendant\u2019s motion for relief from the judgment against him, the Court entered an order making findings of fact, which included the following:\n\u201c13. That the defendant was diligent in communicating with his attorneys and providing his attorneys with the necessary information with which to prepare and file and (sic) answer and that any neglect on the part of the defendant was excusable.\n14. That the neglect of defendant\u2019s attorneys to file an Answer within the specified time is excusable, and is not to be imputed to the defendant.\n15. That this action regards a contract for work performed by the plaintiff and that under the pleadings and affidavits of record in this case the defendant has a meritorious defense against the allegations raised in the Complaint with regard to the defendant\u2019s individual capacity as defendant.\u201d\nBased on its findings of fact, the Court concluded as a matter of law that \u201cthe neglect, if any, by defendant is excusable\u201d and that \u201cdefendant has a meritorious defense to said action.\u201d From order of the Court vacating and setting aside the judgment entered against defendant on 24 January 1975, plaintiff appealed.\nWhitfield, McNeely, Norwood and Badger by David R. Badger for plaintiff appellant.\nEchols, Purser and Adams, P.A. by Thad Adams, III for defendant appellee."
  },
  "file_name": "0105-01",
  "first_page_order": 137,
  "last_page_order": 140
}