{ "id": 8550194, "name": "GENE DAVIS v. WILMA M. MITCHELL, EXECUTRIX OF THE ESTATE OF PAUL C. MITCHELL, JR. AND DR. RICHARD R. VENSEL", "name_abbreviation": "Davis v. Mitchell", "decision_date": "1980-04-15", "docket_number": "No. 7929SC479", "first_page": "272", "last_page": "276", "citations": [ { "type": "official", "cite": "46 N.C. App. 272" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "179 S.E. 2d 890", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "10 N.C. App. 703", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8555496 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc-app/10/0703-01" ] }, { "cite": "246 S.E. 2d 819", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "37 N.C. App. 543", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553937 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc-app/37/0543-01" ] }, { "cite": "265 S.E. 2d 240", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "46 N.C. App. 162", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549625 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc-app/46/0162-01" ] }, { "cite": "240 S.E. 2d 338", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "294 N.C. 200", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572343 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc/294/0200-01" ] }, { "cite": "251 S.E. 2d 443", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "296 N.C. 486", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567731 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc/296/0486-01" ] }, { "cite": "57 N.C. L. Rev. 827", "category": "journals:journal", "reporter": "N.C. L. Rev.", "year": 1979, "pin_cites": [ { "page": "914-918" } ], "opinion_index": 0 }, { "cite": "253 S.E. 2d 571", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "40 N.C. App. 575", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551916 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc-app/40/0575-01" ] }, { "cite": "135 S.E. 2d 667", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1964, "opinion_index": 0 }, { "cite": "261 N.C. 640", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575107 ], "year": 1964, "opinion_index": 0, "case_paths": [ "/nc/261/0640-01" ] }, { "cite": "8 A.L.R. 3d 1272", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "year": 1966, "opinion_index": 0 }, { "cite": "355 F. 2d 553", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 842172 ], "year": 1965, "opinion_index": 0, "case_paths": [ "/f2d/355/0553-01" ] } ], "analysis": { "cardinality": 508, "char_count": 9554, "ocr_confidence": 0.838, "pagerank": { "raw": 2.0425083546772612e-07, "percentile": 0.747904414504475 }, "sha256": "9d6ed10b044cb803bedc185801135b00892585f78f9d781d1ff342e63f487369", "simhash": "1:bf785e316c7c8c57", "word_count": 1568 }, "last_updated": "2023-07-14T21:32:37.131990+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge MORRIS and Judge MARTIN (Robert M.) concur." ], "parties": [ "GENE DAVIS v. WILMA M. MITCHELL, EXECUTRIX OF THE ESTATE OF PAUL C. MITCHELL, JR. AND DR. RICHARD R. VENSEL" ], "opinions": [ { "text": "WELLS, Judge.\nWhile disposing of this appeal on its merits, we deem it nevertheless appropriate to comment briefly on its interlocutory nature. The frequency with which the appellate courts of our State are confronted with appeals which may be deemed interlocutory or fragmentary causes us some considerable concern. The Federal courts as well as a majority of the courts of other jurisdictions have concluded that the setting aside of a default judgment is not ordinarily appealable. See, Murphy v. Helena Rubenstein Co., 355 F. 2d 553 (3rd Cir. 1965); 15 Wright & Miller, Federal Practice and Procedure: Civil \u00a7 3914, p. 586 (1976); 7 Moore\u2019s Federal Practice \u00b6 60.30[3], pp. 431-432 (2d ed. 1979); Annot., Appealability of Order Setting Aside, or Refusing to Set Aside, Default Judgment, 8 A.L.R. 3d 1272 (1966). Our appellate courts have, however, historically entertained such appeals. See, e.g., Shackleford v. Taylor, 261 N.C. 640, 135 S.E. 2d 667 (1964); Howard v. Williams, 40 N.C. App. 575, 253 S.E. 2d 571 (1979). The practice has not escaped criticism. See, Comment, Survey of Developments in North Carolina Law, 1978, 57 N.C. L. Rev. 827, 914-918 (1979). Normally, an interlocutory order which does not affect a \u201csubstantial right\u201d of one of the parties under G.S. 1-277 and G.S. 7A-27(d) is not appealable, and the avoidance of a rehearing or trial is not considered to be such a \u201csubstantial right.\u201d Industries, Inc. v. Insurance Co., 296 N.C. 486, 251 S.E. 2d 443 (1979); Waters v. Personnel, Inc., 294 N.C. 200, 240 S.E. 2d 338 (1978). As indicated in our opinion filed today in Leasing Corp. v. Myers, 46 N.C. App. 162, 265 S.E. 2d 240 (1980), we perceive that our Supreme Court in Industries, supra, and Waters, supra, has raised the flag of caution to the bench and bar with respect to interlocutory or fragmentary appeals.\nPlaintiff\u2019s assignments of error present the question of whether Judge Riddle had authority to set aside the judgment of default entered by the clerk, and, if so, whether the evidence supports the findings of fact and the conclusions of law entered thereon.\nG.S. 1A-1, Rule 55(d), provides:\nFor good cause shown the court may set aside an entry of default, and, if a judgment by default has been entered, the judge may set it aside in accordance with Rule 60(b).\nThe judgment entered by the clerk followed entry of default, and therefore was a final judgment which may be set aside pursuant to the provisions of Rule 60(b), which provides as follows:\nOn 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:\n(1) Mistake, inadvertence, surprise, or excusable neglect\nAlthough the facts found by the trial court are conclusive on appeal if they are supported by any evidence, whether or not these findings of fact constitute excusable neglect is a matter of law and is reviewable upon appeal. Dishman v. Dishman, 37 N.C. App. 543, 246 S.E. 2d 819 (1978); Doxol Gas v. Barefoot, 10 N.C. App. 703, 179 S.E. 2d 890 (1971). Even if there is evidence from which a finding of excusable neglect can be made, our case law requires a finding of meritorious defense before the judgment may be set aside. Doxol Gas v. Barefoot, supra.\nOur review of the record indicates that the trial court\u2019s findings of fact, which were quite. extensive, were amply supported by the evidence. We also find that the trial court properly concluded that defendant Vensel has shown excusable neglect and has asserted a meritorious defense. Judge Riddle went to the heart of the matter in his finding that based upon the complaint alone, defendant simply did not understand that his ownership of the aircraft was at stake. The complaint contains no allegation of any contractual relationship between plaintiff and defendant Vensel, nor any obligation of Vensel to plaintiff. In fact, it is alleged in the complaint that Vensel was the registered owner of the aircraft. While the complaint does allege that defendant Mitchell\u2019s deceased husband was indebted to plaintiff upon a promissory note and had executed a security agreement in which the aircraft was included as collateral for the note, the complaint does not, nevertheless, appear to set forth any claim upon which relief might be granted against the defendant Vensel. Under such circumstances, we find that the defendant\u2019s failure to respond to this action until judgment was entered against him declaring that plaintiff was entitled to all Vensel\u2019s right, title, and interest in the aircraft, was excusable. From defendant Vensel\u2019s answer it is abundantly clear that he had a meritorious defense to plaintiff\u2019s action.\nThe order of the trial court setting aside the entry and judgment of default against the defendant Richard R. Vensel is\nAffirmed.\nChief Judge MORRIS and Judge MARTIN (Robert M.) concur.", "type": "majority", "author": "WELLS, Judge." } ], "attorneys": [ "Raymer, Lewis, Eisele & Patterson, by Walter B. Patterson, for plaintiff appellant.", "Robert W. Wolf for defendant appellee." ], "corrections": "", "head_matter": "GENE DAVIS v. WILMA M. MITCHELL, EXECUTRIX OF THE ESTATE OF PAUL C. MITCHELL, JR. AND DR. RICHARD R. VENSEL\nNo. 7929SC479\n(Filed 15 April 1980)\nRules of Civil Procedure \u00a7 55.1\u2014 claim against defendant not clearly stated \u2014 entry of default properly set aside\nThe trial court did not err in setting aside entry of default against defendant in plaintiff\u2019s action to recover the balance due on a promissory note, since plaintiff\u2019s complaint alleged that a third person was indebted to plaintiff upon a promissory note and had executed a security agreement in which defendant\u2019s aircraft was included as collateral for the note, and defendant was the registered owner of the airplane; but the complaint did not allege any contractual or other obligation of defendant to plaintiff; and the complaint did not make it clear that defendant\u2019s ownership in the aircraft was at stake.\nAPPEAL by plaintiff from Riddle, Judge. Order entered 26 February 1979 in Superior Court, RUTHERFORD County. Heard in the Court of Appeals 8 January 1980.\nPlaintiff instituted this action against the defendant executrix of the estate of Paul C. Mitchell to recover the balance due on a promissory note signed by the deceased and secured by a Rallye MS894 aircraft. Plaintiff joined defendant Dr. Richard R. Vensel as a defendant to the action, alleging Vensel was listed as the registered owner of the aircraft and that plaintiff was unable to determine Vensel\u2019s interest, if any, in the plane. Plaintiff prayed for a temporary restraining order and injunction maintaining and securing the aircraft in Rutherford County until the dispute between the parties was settled, an order entitling plaintiff to possession and ownership of the plane, and for the balance due of $27,000 on the note together with interest and attorney\u2019s fees from Mitchell\u2019s estate.\nDefendant Vensel, a resident of the State of Pennsylvania, was served with a copy of the summons and complaint by registered mail on 12 April 1978. Vensel failed to answer plaintiff\u2019s complaint or otherwise appear in the action within thirty days as required by G.S. 1A-1, Rule 12(a)(1). Upon plaintiff\u2019s affidavit, the Clerk of Superior Court entered default against defendant pursuant to Rule 55(a) on 17 May 1978. On plaintiff\u2019s motion, judgment by default was entered against Vensel under Rule 55(b)(2), the judgment reciting that plaintiff was entitled to all of defendant Vensel\u2019s interest in the aircraft. Defendant Mitchell answered plaintiff\u2019s complaint admitting all of plaintiff\u2019s allegations, and upon plaintiff\u2019s motion, judgment on the pleadings was entered against the estate on 5 September 1978 in the sum of $27,000, together with interest, costs, attorney\u2019s fees and for all of the estate\u2019s interest in the aircraft, less any excess which sale of the plane would bring.\nDefendant Vensel filed a motion pursuant to Rule 55(d) to set aside the entry of default and default judgment on grounds defendant had acted with mistake, inadvertence, and excusable neglect, and that he had a meritorious defense to plaintiff\u2019s action. Vensel submitted an affidavit in support of the motion in which he stated that he had received no formal legal education and that his reading of plaintiff\u2019s complaint disclosed that the action related to the interests of the defendant estate only, and that his interest in the aircraft would not be affected. Vensel\u2019s attorney submitted an affidavit stating that Vensel had meritorious defenses to plaintiff\u2019s action, listing: lack of jurisdiction; failure of plaintiff to allege privity between plaintiff and defendant; and failure of the complaint to state a cause of action against Vensel.\nFollowing a hearing on defendant\u2019s motion, the trial court made extensive findings of fact, finding, inter alia, that defendant did not understand that plaintiff was attempting to deny or terminate his ownership in the aircraft and that from an examination of the pleadings initially filed in the cause, it was not readily apparent as to why defendant Vensel was brought into the action, nor what relief specifically was sought. Upon his findings, the trial court concluded that the failure of defendant Vensel to file an answer or other pleadings in the action was the result of inadvertent and excusable neglect and that he had a number of meritorious defenses to the action. From the trial court\u2019s order setting aside Ahe entry of default and default judgment against defendant Vensel and allowing him an additional thirty days in which to file an answer, plaintiff appeals.\nRaymer, Lewis, Eisele & Patterson, by Walter B. Patterson, for plaintiff appellant.\nRobert W. Wolf for defendant appellee." }, "file_name": "0272-01", "first_page_order": 300, "last_page_order": 304 }