{
  "id": 8555874,
  "name": "JANE GADDY HOGLEN v. MYRTLE M. JAMES",
  "name_abbreviation": "Hoglen v. James",
  "decision_date": "1978-11-21",
  "docket_number": "No. 7830SC93",
  "first_page": "728",
  "last_page": "731",
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    "name": "North Carolina Court of Appeals"
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    "name": "N.C."
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      "category": "reporters:state",
      "reporter": "N.C. App.",
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      "category": "reporters:state_regional",
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      "year": 1975,
      "opinion_index": 0
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    {
      "cite": "27 N.C. App. 611",
      "category": "reporters:state",
      "reporter": "N.C. App.",
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  "last_updated": "2023-07-14T21:32:33.594298+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "Chief Judge BROCK and Judge PARKER concur."
    ],
    "parties": [
      "JANE GADDY HOGLEN v. MYRTLE M. JAMES"
    ],
    "opinions": [
      {
        "text": "HEDRICK, Judge.\nUnless the court in its Order of dismissal for failure to prosecute the action otherwise specifies, the dismissal under Rule 41 operates as an adjudication on the merits. G.S. \u00a7 1A-1, Rule 41(b). Plaintiff\u2019s motion, filed 9 May 1975, to \u201cset aside the order of dismissal in this cause\u201d does not specify the number of the rule under which plaintiff was proceeding as required by Rule 6 of the General Rules of Practice for Superior and District Courts supplemental to the Rules of Civil Procedure; however, since defendant failed to challenge this omission at the hearing on the motion, see Byerly v. Byerly, filed in this Court on 7 November 1978, the trial judge should have treated plaintiff\u2019s motion as one filed pursuant to G.S. \u00a7 1A-1, Rule 60(b), which provides in pertinent part: \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: (1) mistake, inadvertence, surprise, or excusable neglect.\u201d\nIt is the duty of the judge presiding at a Rule 60(b) hearing to make findings of fact and to determine from such facts whether the movant is entitled to relief from a final judgment or order. U.S.I.F. Wynnewood Corp. v. Soderquist, 27 N.C. App. 611, 219 S.E. 2d 787 (1975). A motion for relief under Rule 60(b) is addressed to the sound discretion of the judge hearing the motion. Burwell v. Wilkerson, 30 N.C. App. 110, 226 S.E. 2d 220 (1976). Where a judge refuses to entertain such a motion because he labors under the erroneous belief that he is without power to grant it, then he has failed to exercise the discretion conferred on him by law. Hudgins v. White, 65 N.C. 393 (1871).\nIn the present case, plaintiff\u2019s motion to \u201cset aside the order of dismissal\u201d was made pursuant to G.S. \u00a7 1A-1, Rule 60(b). The judge had the authority to grant the relief requested and it was his duty to rule on the motion. The statement in the order \u201cthat this Court . . . does not have authority to pass upon or reconsider Judge Lewis\u2019 Order\u201d discloses that the hearing Judge erroneously believed that he lacked the power to grant the motion. A Superior Court judge has the authority to grant relief under a Rule 60(b) motion without offending the rule that precludes one Superior Court judge from reviewing the decision of another. See, e.g., Charleston Capital Corp. v. Love Valley Enterprises, Inc., 10 N.C. App. 519, 179 S.E. 2d 190 (1971).\nBecause Judge Griffin erroneously believed he lacked the power to grant the relief requested, plaintiff has never had the proper hearing on his Rule 60(b) motion to which he is entitled.\nVacated and remanded.\nChief Judge BROCK and Judge PARKER concur.",
        "type": "majority",
        "author": "HEDRICK, Judge."
      }
    ],
    "attorneys": [
      "Wilson and Palmer, by W. C. Palmer and Bruce L. Cannon for plaintiff appellant.",
      "Van Winkle, Buck, Wall, Starnes, Hyde and Davis, by O. E. Starnes, Jr., for defendant appellee."
    ],
    "corrections": "",
    "head_matter": "JANE GADDY HOGLEN v. MYRTLE M. JAMES\nNo. 7830SC93\n(Filed 21 November 1978)\n1. Rules of Civil Procedure \u00a7 7\u2014 failure of motion to state rule number \u2014 waiver of right to challenge\nWhere defendant failed to challenge plaintiff\u2019s motion to set aside an order of dismissal on the ground that the motion failed to specify the number of the rule under which plaintiff was proceeding as required by Rule 6 of the General Rules of Practice for Superior and District Courts Supplemental to the Rules of Civil Procedure, the trial court should have treated plaintiff\u2019s motion as one filed pursuant to G.S. 1A-1, Rule 60(b).\n2. Rules of Civil Procedure \u00a7 60\u2014 motion to set aside order \u2014 court\u2019s erroneous belief as to authority\nA superior court judge has the authority to grant relief under a Rule 60(b) motion without offending the rule that precludes one superior court judge from reviewing the decision of another, and plaintiff is entitled to a proper hearing on a Rule 60(b) motion to set aside an order of dismissal where the court denied the motion because he erroneously believed that he lacked the power to grant it.\nAPPEAL by plaintiff from orders of Griffin, Judge, entered 21 September 1977 and 8 November 1977 in Superior Court, HAYWOOD County. Heard in the Court of Appeals on 25 October 1978.\nThis is a civil action instituted by plaintiff on 2 November 1973 to recover damages for personal injuries sustained in an automobile accident that occurred on 9 July 1973. An answer was filed by defendant on 27 December 1973. The case was first set for trial on 6 January 1975, but was continued and a new trial date of 5 May 1975 was set. When the case was called for trial, plaintiff\u2019s attorney was not present in court and by Order filed 7 May 1975 plaintiff\u2019s action was dismissed with prejudice under G.S. \u00a7 1A-1, Rule 41(b) by Judge Robert D. Lewis ex mero motu for failure to prosecute the action. On 9 May 1975, plaintiff filed the following motion:\nThat plaintiff through her counsel, respectfully shows:\n1. That the plaintiff\u2019s counsel, W. C. Palmer of Wilson, Palmer and Simmons, Lenoir, N. C. was seriously injured in his person by an assault by two North Carolina State Highway patrolmen, which assault occurred about 4:30 p.m. on May 4, 1975, in Iredell County, North Carolina; that the said counsel was able to get to his home near Lenoir, N. C. at about midnight of May 4, 1975; that the said counsel was suffering extension [sic] bruises, abrasions and from heavy blows on the head to such an extent that he was unable to sleep nor rest during the balance of that night; that on Monday, May 5, 1975, the undersigned counsel at about 8:45 o\u2019clock a.m. telephoned Mr. O. E. Starnes, Jr., the attorney for defendant and told him (Mr. Starnes) that plaintiff\u2019s counsel could not attend the session of court in Haywood County, North Carolina, on'May 5, 1975, and asked Mr. Starnes to relay that message to the Court; that the undersigned is advised by Mr. 0. E. Starnes, Jr., that the Court was so advised.\n2. That a motion was pending in the case which was filed on April 30, 1975, and plaintiff had not yet filed answer thereto.\n3. That on May 9, 1975, counsel for plaintiff personally attended the Court and further explained to the court the nature and extent of counsel\u2019s injury and the reason for his failing to attend the Court on May 5, 1975.\n4. That until the time of the said counsel\u2019s injury the plaintiff was in all respects ready for trial, but assumed that the Court would hear the pending motion on motion day which was set by the Court for Friday, May 9, 1975.\n5. That the plaintiff has a meritorious cause of action against the defendant in this cause; that the cause was dismissed through no fault of plaintiff nor plaintiff\u2019s counsel.\nWHEREFORE, plaintiff prays that the court set aside the order of dismissal in this cause and reinstate the same upon the trial calendar.\nOn 19 September 1977, a hearing on plaintiffs motion was held before Judge Kenneth Griffin.\nAfter hearing the evidence, Judge Griffin entered an Order on 21 September 1977, stating in pertinent part:\n[T]his Court has examined the Court file and Judge Lewis\u2019 Order, and does not find reason to overrule, or alter the Order of Judge Lewis, and further does not have authority to pass upon or reconsider Judge Lewis\u2019 Order.\nNow, therefore, Plaintiff\u2019s Motion to set aside Judge Lewis\u2019 Order, and reinstate this case is hereby denied.\nAn \u201cAmended Order\u201d identical to the first Order was signed by Judge Griffin on 8 November 1977.\nFrom the orders denying her motion to set aside the judgment, plaintiff appealed.\nWilson and Palmer, by W. C. Palmer and Bruce L. Cannon for plaintiff appellant.\nVan Winkle, Buck, Wall, Starnes, Hyde and Davis, by O. E. Starnes, Jr., for defendant appellee."
  },
  "file_name": "0728-01",
  "first_page_order": 756,
  "last_page_order": 759
}