{
  "id": 8549101,
  "name": "UTICA MUTUAL INSURANCE COMPANY, Plaintiff v. LUTHER L. JOHNSON, T/A JOHNSON'S ALIGNMENT SERVICE, Defendant and Third-Party Plaintiff v. GEORGE L. BROADNAX, Third-Party Defendant",
  "name_abbreviation": "Utica Mutual Insurance v. Johnson",
  "decision_date": "1979-05-15",
  "docket_number": "No. 7812DC767",
  "first_page": "299",
  "last_page": "302",
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      "reporter": "S.E.2d",
      "year": 1962,
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  "last_updated": "2023-07-14T18:02:40.540741+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
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  "casebody": {
    "judges": [
      "Judges PARKER and MITCHELL concur."
    ],
    "parties": [
      "UTICA MUTUAL INSURANCE COMPANY, Plaintiff v. LUTHER L. JOHNSON, T/A JOHNSON\u2019S ALIGNMENT SERVICE, Defendant and Third-Party Plaintiff v. GEORGE L. BROADNAX, Third-Party Defendant"
    ],
    "opinions": [
      {
        "text": "MARTIN (Harry C.), Judge.\nThe third-party defendant, Broadnax, contends the trial court\u2019s order of 28 April 1978 was erroneously entered and should be vacated. We agree.\nThe 28 April 1978 order vacated the 24 October 1977 order. It was not an order correcting a clerical mistake or oversight entered pursuant to N.C.G.S. 1A-1, Rule 60(a). Rather, the order vacated the prior order and held Broadnax was not entitled to have the default judgment against him set aside. The courts have always had inherent authority to correct clerical errors in orders and judgments, but they do not have the power to amend or vacate an order or judgment so as to affect the rights of the parties, without giving the parties notice and an opportunity to be heard. Vandooren v. Vandooren, 27 N.C. App. 279, 218 S.E. 2d 715 (1975). \u201cNo person shall be ... in any manner deprived of his . . . property, but by the law of the land.\u201d N.C. Const. art. I, \u00a7 19. The \u201claw of the land\u201d requires notice and opportunity to be heard. In re Wilson, 257 N.C. 593, 126 S.E. 2d 489 (1962); Eason v. Spence, 232 N.C. 579, 61 S.E. 2d 717 (1950).\nRule 60(a) does not authorize the trial court to set aside a previous ruling where the reason for so doing is legal error. Sink v. Easter, 288 N.C. 183, 217 S.E. 2d 532 (1975); Snell v. Board of Education, 29 N.C. App. 31, 222 S.E. 2d 756 (1976).\nDefendant Johnson made no motion challenging the 24 October 1977 order, apparently realizing his remedy, if any, was by way of appeal. The court had no authority to enter the order of 28 April 1978 and it is vacated.\nVacated and remanded.\nJudges PARKER and MITCHELL concur.",
        "type": "majority",
        "author": "MARTIN (Harry C.), Judge."
      }
    ],
    "attorneys": [
      "Barrington, Jones, Witcover and Carter, by C. Bruce Armstrong, for third-party defendant appellant.",
      "No counsel contra."
    ],
    "corrections": "",
    "head_matter": "UTICA MUTUAL INSURANCE COMPANY, Plaintiff v. LUTHER L. JOHNSON, T/A JOHNSON\u2019S ALIGNMENT SERVICE, Defendant and Third-Party Plaintiff v. GEORGE L. BROADNAX, Third-Party Defendant\nNo. 7812DC767\n(Filed 15 May 1979)\n1. Judgments \u00a7 34; Rules of Civil Procedure \u00a7 60.1\u2014 vacation of order \u2014notice\nThe trial court did not have the power to vacate an order so as to affect the rights of the parties without giving the parties notice and an opportunity to be heard.\n2. Rules of Civil Procedure \u00a7 60.2\u2014 setting aside prior order \u2014legal error\nG.S. 1A-1, Rule 60(a) does not authorize the trial court to set aside a previous ruling where the reason for so doing is legal error.\nAppeal by third-party defendant from Guy, Judge. Order entered 28 April 1978 in District Court, CUMBERLAND County. Heard in the Court of Appeals 3 May 1979.\nUtica Mutual Insurance Company brought this action against Johnson\u2019s Alignment Service to recover possession of a 1972 Plymouth automobile. Johnson answered and crossclaimed against George L. Broadnax, alleging Broadnax delivered the car to him for repairs which he performed and that he is entitled to recover from Broadnax $1544.63 for the repairs, and other damages. Broadnax answered the crossclaim, denying he delivered the car to Johnson and alleging he had no interest in the car.\nThe attorney for Broadnax, on 14 February 1975, was allowed to withdraw as counsel of record in the case. On 11 October 1976, the trial court allowed Utica Mutual\u2019s motion for summary judgment in part, thereby establishing its right to the possession of the Plymouth car, reserving the question of damages.\nThereafter, on 25 April 1977, the case came on for trial. The third-party defendant, Broadnax, was not present, nor was he represented by counsel at that time. The trial court found that Broadnax had received notice of the trial. The court entered judgment finding that Utica Mutual was not entitled to any damages from Johnson and that Johnson was not entitled to recover any damages from Utica on his counterclaim.\nThe court further found that Broadnax falsely represented to Johnson that he was the owner of the Plymouth car and that he had entered into an implied contract with Johnson for repair of the car. In fact, the car was stolen, and Broadnax did not own any interest in it. The court held Johnson was entitled to recover from Broadnax $1544.63 as cost of repairs and $500 punitive damages.\nBroadnax, through new counsel, filed a motion with affidavits on 21 June 1977 to vacate the judgment as to him for the reason that he did not have notice of the trial. The motion was heard on 15 August 1977, with Johnson and Broadnax appearing through counsel. The court found Broadnax did not have proper notice of the 25 April 1977 trial and that his failure to appear was the result of excusable neglect, and entered an order vacating the 25 April 1977 judgment as it applied to Johnson\u2019s claim against Broadnax. This order was filed 24 October 1977. Although the order made no finding that Broadnax had a meritorious defense to Johnson\u2019s claim, Johnson did not appeal.\nNext, on 28 April 1978 an ex parte order was entered by the district court judge setting aside the 24 October 1977 order ex mero motu. The court further held Broadnax did have notice of the 25 April 1977 trial and denied the motion of Broadnax to set aside the 25 April 1977 judgment. The record fails to show that either Johnson or Broadnax, or their respective counsel, was present at the entry of the 28 April 1978 order. It does not show, that Broadnax had notice of the proposed entry of the order or had any opportunity to be present and to be heard. From this order, Broadnax appeals.\nBarrington, Jones, Witcover and Carter, by C. Bruce Armstrong, for third-party defendant appellant.\nNo counsel contra."
  },
  "file_name": "0299-01",
  "first_page_order": 327,
  "last_page_order": 330
}
