{
  "id": 8555400,
  "name": "KYLE KELLY HARRINGTON and KYLE HARRINGTON, Trustees v. ALEX S. and JOYCE S. HARRINGTON",
  "name_abbreviation": "Harrington v. Harrington",
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  "casebody": {
    "judges": [
      "Judges Clark and Erwin concur."
    ],
    "parties": [
      "KYLE KELLY HARRINGTON and KYLE HARRINGTON, Trustees v. ALEX S. and JOYCE S. HARRINGTON"
    ],
    "opinions": [
      {
        "text": "ARNOLD, Judge.\nDefendants first contend that their failure to appear in court on 29 August was excusable neglect, induced by the confusion of receiving two trial calendars with their case calendared for two different months. They argue that it was reasonable for them to assume that the September calendar \u201cextinguished\u201d the August one, and they seek relief under G.S. 1A-1, Rule 60(b)(1) from the judgment entered against them.\nWe find that defendants\u2019 failure to appear at the August session was not excusable neglect. We note initially that relief under Rule 60(b) is within the discretion of the trial court, and such a decision will be disturbed only for an abuse of discretion. Burwell v. Wilkerson, 30 N.C. App. 110, 226 S.E. 2d 220 (1976). It is clear that the trial court\u2019s decision here comports with numerous North Carolina cases on the same topic. See, e.g., Baer v. McCall, 212 N.C. 389, 193 S.E. 406 (1937); Mason v. Mason, 22 N.C. App. 494, 206 S.E. 2d 764 (1974); Engines & Equipment, Inc. v. Lipscomb, 15 N.C. App. 120, 189 S.E. 2d 498 (1972); Holcombe v. Bowman, 8 N.C. App. 673, 175 S.E. 2d 362 (1970). \u201cA lawsuit is a serious matter. He who is a party to a case in court \u2018must give it that attention which a prudent man gives to his important business.\u2019 \u201d Pepper v. Clegg, 132 N.C. 312, 315, 43 S.E. 906, 907 (1903). The record indicates that defendants were told in June by the trial court itself that the case would be tried in August. Moreover, any confusion brought about by the receipt of the two trial calendars could have been cleared up by a simple phone call to the clerk of court. It is apparent that defendants did not deal with this case as one would an important business matter.\nWe also reject defendants\u2019 contention that their appeal of the original judgment was improperly dismissed. In the order dismissing the appeal, the trial court found as fact that judgment was rendered and entered in the court minutes on 1 September 1977, signed by the judge on 9 September, and filed on 12 September. Defendants filed appeal entries on 21 September. Under Rule 3(c) of the Rules of Appellate Procedure, \u201cappeal from a judgment or order in a civil action or special proceeding must be taken within 10 days after its entry.\u201d The trial court found that more than 10 days had elapsed between the entry of judgment and the notice of appeal, and dismissed the appeal.\nDefendants argue that this Court should consult the Federal Rules of Civil Procedure for assistance in defining \u201centry of judgment.\u201d They insist that the federal requirement that \u201cevery judgment shall be set forth on a separate document,\u201d FRCP Rule 58, should be read into our Rule 58. However, G.S. 1A-1, Rule 58 clearly defines an entry of judgment: \u201cwhere judgment is rendered in open court, the clerk shall make a notation in his minutes . . . and such notation shall constitute the entry of judgment for the purposes of these rules.\u201d We need not look outside our rules to expand the definition. Here, judgment was entered on 1 September and notice of appeal was given on 21 September. As the 10-day period was exceeded, the appeal was properly dismissed.\nThe orders of the trial court are\nAffirmed.\nJudges Clark and Erwin concur.",
        "type": "majority",
        "author": "ARNOLD, Judge."
      }
    ],
    "attorneys": [
      "Morgan, Bryan, Jones, Johnson, Hunter & Greene, by Robert C. Bryan, for plaintiff appellees.",
      "Mast, Tew, Nall & Moore, P.A., by Joseph T. Nall, for defendant appellants."
    ],
    "corrections": "",
    "head_matter": "KYLE KELLY HARRINGTON and KYLE HARRINGTON, Trustees v. ALEX S. and JOYCE S. HARRINGTON\nNo. 7811SC47\n(Filed 7 November 1978)\n1. Rules of Civil Procedure \u00a7 60.2\u2014 defendants\u2019 failure to appear for trial \u2014 no excusable neglect\nDefendants\u2019 contention that their failure to appear at the August session of court when their case was calendared was excusable neglect is without merit, since defendants were told in June by the trial judge himself that the case would be tried in August; defendants received a copy of the August calendar which listed their case; and any confusion brought about by the receipt of an August and a September calendar, each showing defendants\u2019 case calendared for that month, could have been cleared up by a phone call to the clerk of court.\n2. Appeal and Error \u00a7 14; Rules of Civil Procedure \u00a7 58\u2014 notice of appeal not timely \u2014 appeal dismissed \u2014 requirements for entry of judgment\nThe trial court properly dismissed defendants\u2019 appeal where more than ten days elapsed between the entry of judgment and the notice of appeal, and defendants\u2019 contention that \u201centry of judgment\u201d should require that every judgment be set forth on a separate document, as required by federal rules, is without merit, 6.S. 1A-1, Rule 58 requiring only that the clerk make a notation in his minutes, such notation to constitute the entry of judgment.\nAPPEAL by defendants from Braswell, J. Orders entered 25 October 1977 in Superior Court, HARNETT County. Heard in the Court of Appeals 18 October 1978.\nPlaintiffs petitioned for the adjudication of the true boundary line between their property and defendants\u2019 property. Defendants filed answer and claimed part of plaintiffs\u2019 land by adverse possession. The case was calendared for trial in February, March and June of 1977 and continued each time at defendants\u2019 request. According to plaintiffs\u2019 uncontradicted testimony, as well as that of the Clerk of Superior Court for Harnett County, when the case was called in June defendant Alex Harrington was told by the court that the case would be tried at the August term.\nThe case was calendared for the 29 August session, and defendants received a copy of the trial calendar. On 27 August, defendants received another trial calendar indicating that the action was tentatively calendared for trial during the week of 26 September. It apparently is the practice in Harnett County, and common knowledge among the attorneys there, to calendar a case tentatively for a second session in case it is not reached at the first calendared session.\nThe matter was heard in the 29 August session, but defendants did not appear. Judgment for plaintiffs was entered in open court on 1 September, signed on 9 September, and filed on 12 September. On 21 September, defendants gave notice of appeal. Plaintiffs moved to dismiss the appeal as not timely entered, and defendants moved to set aside the judgment and for a new trial. After a hearing on both parties\u2019 motions, the trial court granted plaintiffs\u2019 motion to dismiss the appeal; defendants\u2019 motions were denied. From these orders defendants appeal.\nMorgan, Bryan, Jones, Johnson, Hunter & Greene, by Robert C. Bryan, for plaintiff appellees.\nMast, Tew, Nall & Moore, P.A., by Joseph T. Nall, for defendant appellants."
  },
  "file_name": "0610-01",
  "first_page_order": 638,
  "last_page_order": 641
}