{
  "id": 8553931,
  "name": "FANNIE B. HENNESSEE v. CECIL COGBURN",
  "name_abbreviation": "Hennessee v. Cogburn",
  "decision_date": "1979-02-06",
  "docket_number": "No. 7830SC2",
  "first_page": "627",
  "last_page": "630",
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    "name": "North Carolina Court of Appeals"
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      "cite": "247 N.C. 13",
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      "year": 1977,
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    {
      "cite": "291 N.C. 630",
      "category": "reporters:state",
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  "last_updated": "2023-07-14T17:57:00.834910+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
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  "casebody": {
    "judges": [
      "Judges Hedrick and Arnold concur."
    ],
    "parties": [
      "FANNIE B. HENNESSEE v. CECIL COGBURN"
    ],
    "opinions": [
      {
        "text": "WEBB, Judge.\nThe appellant advances three arguments as to why it was error to set the verdict aside and retry the case. These are (1) notice of the motion to set the verdict aside was not served on him, (2) Judge Hasty did not have the power to set the verdict aside at a term of court subsequent to the one at which the verdict was entered, and (3) when a final judgment was entered at the January 1977 term of court terminating the case, the court had no jurisdiction at a subsequent term to make a valid order. The second argument is closely related to the third.\nThe resolution of these questions depends on our Rules of Civil Procedure. Rule 59 of the North Carolina Rules of Civil Procedure says:\n\u201c(a) Grounds. \u2014 A new trial may be granted to all or any of the parties and on all or part of the issues for any of the following causes or grounds:\n* * *\n(9) Any other reason heretofore recognized as grounds for a new trial.\n* * *\n(b) Time for motion. \u2014 A motion for a new trial shall be served not later than 10 days after entry of the judgment.\u201d\nRule 5(a) of the North Carolina Rules of Civil Procedure says:\n\u201c(a) Service \u2014 when required. \u2014 [N]o service need be made on parties in default for failure to appear except that pleadings asserting new or additional claims for relief against them shall be served upon them in the manner provided for service of summons in Rule 4.\u201d\nAs to the appellant\u2019s first argument, Rule 59(b) says that a \u201cmotion for a new trial shall be served not later than 10 days after the entry of judgment.\u201d Rule 5(a) says \u201cno service need be made on parties in default for failure to appear. . . .\u201d We hold that Rule 59(a) when construed with Rule 5(a) means that service must be made within ten days when service is required. In this case service was not required under Rule 5(a) since the defendant was in default for failure to appear and the plaintiff did not assert a new or additional claim for relief.\nAs to the appellant\u2019s second and third arguments the motion to set the verdict aside was made within ten days of the entry of the verdict. Judge Hasty had the power under Rule 59(a)(9) to set the verdict aside in his discretion. Britt v. Allen, 291 N.C. 630, 231 S.E. 2d 607 (1977). We hold that he did not lose this power when the term of court ended. The defendant relies on Pruett v. Pruett, 247 N.C. 13, 100 S.E. 2d 296 (1957); Burton v. Reidsville, 243 N.C. 405, 90 S.E. 2d 700 (1956) and Johnston v. Johnston, 218 N.C. 706, 12 S.E. 2d 248 (1940) as authority for the proposition that when a case has been finally determined a court has no power at a subsequent term to modify the judgment. None of these cases interpret Rule 5 or 59 of the Rules of Civil Procedure. They are not precedents for this case.\nThe defendant\u2019s last assignment of error pertains to the charge. The court recapitulated the plaintiff\u2019s evidence as to the damage she had suffered. He then charged in part as follows: \u201cIn considering the amount of damages, if any, you may consider resulting loss of business or job, injury to reputation and mental suffering.As I say, the plaintiff says she has been substantially damaged, and you can answer that issue in any sum from $1.00 to $20,000.00.\u201d The defendant contends that by telling the jury it could answer the issue \u201cin any sum from $1.00 to $20,000.00\u201d the court placed the award in the unbridled discretion of the jury. When considered in conjunction with the court\u2019s earlier instruction as to what the jury could consider in awarding compensatory damages, we hold the court did not leave the damages in the unbridled discretion of the jury, but properly charged the jury what it could consider in awarding damages. See Carter v. Lykes, 262 N.C. 345, 137 S.E. 2d 139 (1964).\nIt appears the jury may have awarded a substantial verdict for the damages proved. The trial judge did not disturb the verdict and we cannot interfere with his discretion.\nNo error.\nJudges Hedrick and Arnold concur.",
        "type": "majority",
        "author": "WEBB, Judge."
      }
    ],
    "attorneys": [
      "Millar and McLean, by Russell L. McLean III, for plaintiff ap-pellee.",
      "Roberts, Cogburn and Williams, by Max O. Cogburn, for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "FANNIE B. HENNESSEE v. CECIL COGBURN\nNo. 7830SC2\n(Filed 6 Feburary 1979)\n1. Rules of Civil Procedure \u00a7 5\u2014 defendant in default \u2014 motion to set aside verdict-service not required\nService of a motion to set aside a verdict was not required since defendant was in default for failure to appear and plaintiff did not assert a new or additional claim for relief.\n2. Rules of Civil Procedure \u00a7 59\u2014 setting aside verdict \u2014 motion made within ten days of verdict \u2014 power of trial court\nIt was within the trial court\u2019s discretion to set aside a verdict where the motion to set aside was made within ten days of the entry of the verdict, and the trial court did not lose this discretionary power when the term of court ended.\n3. Damages \u00a7 17\u2014 amount of damages \u2014 minimum and maximum figures \u2014 no unbridled discretion given jury\nWhen considered in conjunction with the court\u2019s earlier instruction as to what the jury could consider in awarding compensatory damages, the court\u2019s instruction that the jury could award \u201cany sum from $1.00 to $20,000.00\u201d did not leave the damages in the unbridled discretion of the jury.\nAPPEAL by defendant from Griffin, Judge. Judgment entered 22 September 1977 in Superior Court, HAYWOOD County. Heard in the Court of Appeals 27 September 1978.\nThe plaintiff brought this action against the defendant for malicious prosecution arising out of a worthless check charge against her which was dismissed. The plaintiff asked for $25,000.00 in compensatory damages and $50,000.00 in punitive damages. The defendant made no response and on 9 November 1976 an entry of default was made against him. At the January 1977 civil session with Judge Hasty presiding, and without the defendant\u2019s presence, an issue as to what amount of damages the plaintiff was entitled to recover of the defendant was submitted to the jury. The jury answered \u201cnone.\u201d On 11 January 1977, a judgment was entered, signed by Judge Hasty, ordering that the plaintiff recover nothing from the defendant. On 14 January 1977, the plaintiff filed two motions, one for a judgment notwithstanding the verdict, and the other that the verdict and judgment be set aside and a new trial be had upon the damage issue. Neither of the motions was ever served on the defendant. On 10 February 1977, the court entered an order in which it found \u201cthat grounds for a new trial exist, under Rule 59-A\u00cd7)\u201d and ordered in its discretion that \u201cthe verdict previously rendered be set aside and a new trial, on the issue of damages, granted.\u201d The case was retried in September 1977 at which time the plaintiff was present and represented by counsel. The defendant was present, but did not have counsel. The plaintiff testified that because of her being prosecuted on the worthless check charge, she missed at least four days of work. She said she was so upset she could not do her work and on 1 September 1976 was discharged from her job as key-punch operator at Memorial Mission Hospital. She testified further that she was unemployed until 29 November 1976 at which time she got a job at Fletcher Hospital. Her wages had been $3.20 per hour at Memorial Mission Hospital and they were $3.00 per hour at Fletcher Hospital. She also testified the benefits were not as good at Fletcher Hospital as at Memorial Mission Hospital.\nAt the second trial, the jury awarded plaintiff $12,500.00 in compensatory damages and nothing for punitive damages. On 22 September 1977, the court entered a judgment against the defendant for $12,500.00.\nMillar and McLean, by Russell L. McLean III, for plaintiff ap-pellee.\nRoberts, Cogburn and Williams, by Max O. Cogburn, for defendant appellant."
  },
  "file_name": "0627-01",
  "first_page_order": 655,
  "last_page_order": 658
}