{ "id": 8565242, "name": "SHERRY PAMELA SINK v. KENNETH WESLEY EASTER, JR.", "name_abbreviation": "Sink v. Easter", "decision_date": "1975-08-27", "docket_number": "No. 72", "first_page": "183", "last_page": "201", "citations": [ { "type": "official", "cite": "288 N.C. 183" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "285 N.C. 597", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567152, 8567041, 8567075, 8567112 ], "weight": 2, "opinion_index": -1, "case_paths": [ "/nc/285/0597-04", "/nc/285/0597-01", "/nc/285/0597-02", "/nc/285/0597-03" ] }, { "cite": "202 S.E. 2d' 138", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": -1 }, { "cite": "202 S.E. 2d 138", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1974, "pin_cites": [ { "page": "143" } ], "opinion_index": -1 }, { "cite": "284 N.C. 555", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563199 ], "weight": 13, "year": 1974, "pin_cites": [ { "page": "561" } ], "opinion_index": -1, "case_paths": [ "/nc/284/0555-01" ] }, { "cite": "198 S.E. 2d 43", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "opinion_index": -1 }, { "cite": "19 N.C. App. 151", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551226 ], "year": 1973, "opinion_index": -1, "case_paths": [ "/nc-app/19/0151-01" ] }, { "cite": "208 S.E. 2d 895", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "pin_cites": [ { "parenthetical": "opinion by Britt, J., Hedrick, J., concurring, Baley, J., dissenting" } ], "opinion_index": -1 }, { "cite": "23 N.C. App. 296", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549591 ], "year": 1974, "pin_cites": [ { "parenthetical": "opinion by Britt, J., Hedrick, J., concurring, Baley, J., dissenting" } ], "opinion_index": -1, "case_paths": [ "/nc-app/23/0296-01" ] }, { "cite": "13 A.L.R. Fed. 794", "category": "reporters:federal", "reporter": "A.L.R. Fed.", "year": 1972, "opinion_index": 0 }, { "cite": "133 S.E. 2d 659", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "260 N.C. 732", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8576229 ], "opinion_index": 0, "case_paths": [ "/nc/260/0732-01" ] }, { "cite": "59 S.E. 2d 351", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1950, "opinion_index": 0 }, { "cite": "232 N.C. 36", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8594950 ], "year": 1950, "opinion_index": 0, "case_paths": [ "/nc/232/0036-01" ] }, { "cite": "98 S.E. 2d 879", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1957, "pin_cites": [ { "parenthetical": "refusal of motion to dismiss not \"final\" determination" } ], "opinion_index": 0 }, { "cite": "246 N.C. 528", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627249 ], "year": 1957, "pin_cites": [ { "parenthetical": "refusal of motion to dismiss not \"final\" determination" } ], "opinion_index": 0, "case_paths": [ "/nc/246/0528-01" ] }, { "cite": "15 A.L.R. Fed. 193", "category": "reporters:federal", "reporter": "A.L.R. Fed.", "year": 1973, "opinion_index": 0 }, { "cite": "184 S.E. 2d 879", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1971, "pin_cites": [ { "page": "889" }, { "page": "880" }, { "page": "882" } ], "opinion_index": 0 }, { "cite": "280 N.C. 106", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569959 ], "weight": 2, "year": 1971, "pin_cites": [ { "page": "110" }, { "page": "108" } ], "opinion_index": 0, "case_paths": [ "/nc/280/0106-01" ] }, { "cite": "52 N.C. L. Rev. 836", "category": "journals:journal", "reporter": "N.C. L. Rev.", "year": 1974, "opinion_index": 0 }, { "cite": "87 Harv. L. Rev. 1485", "category": "journals:journal", "reporter": "Harv. L. Rev.", "year": 1974, "opinion_index": 0 }, { "cite": "200 S.E. 2d 799", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "pin_cites": [ { "parenthetical": "offensive assertion" } ], "opinion_index": 0 }, { "cite": "284 N.C. 348", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561845 ], "year": 1973, "pin_cites": [ { "parenthetical": "offensive assertion" } ], "opinion_index": 0, "case_paths": [ "/nc/284/0348-01" ] }, { "cite": "105 S.E. 2d 655", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1958, "pin_cites": [ { "parenthetical": "defensive assertion" } ], "opinion_index": 0 }, { "cite": "249 N.C. 167", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8611364 ], "year": 1958, "pin_cites": [ { "parenthetical": "defensive assertion" } ], "opinion_index": 0, "case_paths": [ "/nc/249/0167-01" ] }, { "cite": "208 S.E. 2d 895", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "pin_cites": [ { "page": "897" } ], "opinion_index": 0 }, { "cite": "23 N.C. App. 296", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549591 ], "year": 1974, "pin_cites": [ { "page": "300" } ], "opinion_index": 0, "case_paths": [ "/nc-app/23/0296-01" ] } ], "analysis": { "cardinality": 990, "char_count": 38201, "ocr_confidence": 0.578, "pagerank": { "raw": 2.482916628718826e-06, "percentile": 0.9965021126714337 }, "sha256": "fcfe38e928e2c8f846adff98fce13014a71415cba8c1150bc5426f28474db41d", "simhash": "1:2dacb563042b0df9", "word_count": 6538 }, "last_updated": "2023-07-14T18:59:08.487022+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "SHERRY PAMELA SINK v. KENNETH WESLEY EASTER, JR." ], "opinions": [ { "text": "COPELAND, Justice.\nThis case is complicated essentially because so many errors were made before it reached this Court. In unraveling this chain of procedural events, we begin with defendant\u2019s motion to dismiss filed on 7 February 1974. This motion is reproduced in full below:\n\u201cNow Comes the defendant, who moves the Court to dismiss this action for lack of jurisdiction and respectfully shows unto the Court:\n1. This action was instituted on September 4, 1971, by the issuance of summons and granting of an order extending time to file complaint until September 24, 1971. The summons and Court\u2019s order were delivered to the Sheriff of Guilford County and returned unserved September 10, 1971.\n2. The plaintiff attempted to serve the defendant by publication, but the defendant was not subject to such service and the same was void and further, the attempted service for publication was fatally defective, all as set forth in the opinion of the Supreme Court of North Carolina filed January 25, 1974, in the companion case of James A. Sink v. Kenneth Wesley Easter, Jr., which had identical facts.\n3. The question decided in the case of JAMES A. SINK v. KENNETH WESLEY EASTER, JR., was raised at the same time in this case, arguments were held in the Superior Court at the same time, and identical orders were entered in each case denying the defendant\u2019s motion dated December 27, 1971. The order heretofore entered in this cause is irregular and void by reason of the opinion of the Supreme Court of North Carolina, and the Court lacks jurisdiction except to enter a formal order of dismissal.\n4. This motion is made pursuant to the provisions of Rule 60 (b) (6) Rules of Civil Procedure.\u201d (Emphasis supplied.)\nThe first issue for decision involves the legal effect of the above-quoted motion. Although inartfully drawn and mislabeled as having been made pursuant to Rule 60(b) (6), it is apparent on its face that the motion was intended as a defensive pleading of our decision in the father\u2019s case as collateral estoppel. For application of the doctrine of collateral estoppel in this type of situation see, e.g., Crosland-Cullen Company v. Crosland, 249 N.C. 167, 105 S.E. 2d 655 (1958) (defensive assertion). Cf., King v. Grindstaff, 284 N.C. 348, 200 S.E. 2d 799 (1973) (offensive assertion). For a general discussion of the doctrine see, e.g., Note, Collateral Estoppel of Nonparties, 87 Harv. L. Rev. 1485 (1974); Note, Civil Procedure \u2014 Offensive Assertion of a Prior Judgment as Collateral Estoppel \u2014 A Sword in the Hands of the Plaintiff? 52 N.C. L. Rev. 836 (1974).\nRule 60(b) of the North Carolina Rules of Civil Procedure, which is nearly identical to Federal Rule 60(b), has no application to interlocutory judgments, orders, or proceedings of the trial court. It only applies, by its express terms, to final judgments. See Wiggins v. Bunch, 280 N.C. 106, 110, 184 S.E. 2d 879, 889 (1971); G.S. 1A-1, Rule 60(b). See generally 7 Moore\u2019s Federal Practice \u00a7\u00a7 60.14(4) and 60.20 (1974) (hereinafter cited as Moore) ; Wright & Miller, Federal Practice and Procedure: Civil \u00a7 2852 (1973) (hereinafter cited as Wright & Miller) ; Annot., 15 A.L.R. Fed. 193 (1973). In this context, the prior denial of defendant\u2019s Rule 12(b) motion on 27 December 1971 constituted nothing more than an interlocutory order [see, e.g., Cox v. Cox, 246 N.C. 528, 98 S.E. 2d 879 (1957) (refusal of motion to dismiss not \u201cfinal\u201d determination) ; 2 McIntosh, N. C. Practice and Procedure, \u00a7\u00a7 1782(1) and (7) (2d ed. 1956), and 1970 pocket part; W. Shuford, N. C. Civil.Practice and Procedure, \u00a7 54-3 (1975). As to the distinction between final and interlocutory judgments and orders see G.S. 1A-1, Rule 54(a), which is almost identical to former G.S. 1-208, and Russ v. Woodard, 232 N.C. 36, 59 S.E. 2d 351 (1950)]. Hence, it follows that defendant\u2019s motion could not, as a matter of. law, have been a proper motion under Rule 60 (b). Parenthetically, we also point out that Judge Wood\u2019s prior denial of defendant\u2019s Rule 12(b) motion was not a \u201cvoid\u201d judgment, as defendant asserted, since the court always has jurisdiction to determine whether or not it has jurisdiction. See, e.g., C. Wright, Federal Courts, 50-53 (2d ed. 1970), and numerous authorities there cited. Therefore, we elect to treat defendant\u2019s motion filed on 7 February 1974 as a motion for summary judgment based on the doctrine of collateral estoppel. Likewise, we elect to treat Judge Wood\u2019s order (originally filed on 21 March 1974 and corrected on 28 March 1974) as a granting of a motion filed pursuant to Rule 56.\nWe next analyze the actions taken on 28 March 1974. In chronological order, they were as follows: (1) Plaintiff filed a motion pursuant to Rules 60(b) (1) and (2), seeking relief from the judgment of dismissal filed on 21 March 1974; (2) Judge Wood filed a correction to the judgment originally filed on 21 March 1974 in which he stated that he had not considered any of the affidavits filed by plaintiff on 18 March 1974 before ruling on defendant\u2019s motion; (3) Plaintiff objected to the corrected judgment and gave notice of appeal to the Court of Appeals; (4) Judge Wood filed an order denying plaintiff\u2019s Rule 60(b) motion; and (5) Plaintiff objected to the denial of a Rule 60(b) motion and gave notice of appeal to the Court of Appeals.\nNo question arises as to Judge Wood\u2019s jurisdiction to enter the orders of 28 March 1974. In Wiggins v. Bunch, supra, this Court, in an opinion by Justice Branch, stated the rule applicable to this type of situation as follows:\n\u201cFor many years it has been recognized that as a general rule an appeal takes the case out of the jurisdiction of the trial court. In Machine Co. v. Dixon, 260 N.C. 732, 133 S.E. 2d 659, it was stated:\n\u2018As a general rule, an appeal takes a case out of the jurisdiction of the trial court. Thereafter, pending the appeal, the judge is functus officio. \u201c . . . (A) motion in the cause can only be entertained by the court where the cause is.\u201d Exceptions to the general rule are: (1) notwithstanding notice of appeal a cause remains in fieri during the term in which the judgment was rendered, (2) the trial judge, after notice and on proper showing, may adjudge the appeal has been abandoned, (3) the settlement of the case on appeal.\u2019 \u201d 280 N.C. at 108, 184 S.E. 2d at 880.\nWiggins also held that the \u201cgeneral rule\u201d above quoted \u201cwas not changed by Rules 59 and 60 of the New Rules of Civil Procedure.\u201d Id. at 109, 184 S.E. 2d at 882. We take judicial notice that from 25 March 1974 to 29 March 1974 Judge Wood held a regular one-week civil session in Iredell County Superior Court. Therefore, under Exception No. 1 to the \u201cgeneral rule,\u201d above cited, Judge Wood had jurisdiction to enter the orders above referred to on 28 March 1974.\nJudge Wood\u2019s actions on 1 April 1974, however, raise serious jurisdictional questions. First, it is clear that Judge Wood committed error on 28 March 1974 when he denied plaintiff\u2019s Rule 60(b) motion on the ground that he had no discretion to consider it. As is recognized in many cases, a motion for relief under Rule 60(b) is addressed to the sound discretion of the trial court and appellate review is limited to determining whether the court abused its discretion. See, e.g., Wright & Miller, supra, at \u00a7 2857 and numerous cases cited. Second, it is also clear that Judge Wood, cognizant of the aforementioned error, acted on 1 April 1974 to set aside his order of 28 March 1974 denying plaintiff\u2019s 60 (b) motion and to conduct a hearing, over defendant\u2019s objection, on the motion. Thus, the question for decision is whether plaintiff\u2019s appeal from the prior denial of her 60(b) motion was properly abandoned as of 1 April 1974.\nWe take judicial notice that on 1 April 1974 Judge Wood began presiding over a regular two-week civil session of Davidson County Superior Court. Thus, he lost jurisdiction over the cause under the \u201cTerm Rule.\u201d As heretofore noted, the general rule in this State is that an appeal takes the cause of action out of the jurisdiction of the trial court. See Wiggins v. Bunch, supra. It is important to remember that plaintiff had two appeals pending (but not yet, docketed with the Court of Appeals) on 1 April 1974. The first appeal concerned plaintiff\u2019s exception to Judge Wood\u2019s order granting defendant\u2019s motion to dismiss. The second appeal concerned plaintiff\u2019s exception to Judge Wood\u2019s denial of her 60 (b) motion.\nHowever, the general rule that an appeal divests the trial court of jurisdiction becomes inoperative when the trial judge, after due notice and on a proper showing, adjudges that the appeal has been abandoned. We construe the proceedings appearing in the record on 1 April 1974 to constitute an adjudication by the court that plaintiff\u2019s prior appeal from the denial of her Rule 60 (b) motion had been abandoned-and that plaintiff, by appearing at said hearing, gave proper notice of her intention to abandon the same. This is essentially the same conclusion reached by Judge Baley in his dissenting opinion. See 23 N.C. App. at 300, 208 S.E. 2d at 897. It follows therefore that the Superior Court had jurisdiction on 1 April 1974 to reconsider its prior denial of plaintiff\u2019s Rule 60(b) motion.\nA secondary question for decision involves the effect of a pending or completed appeal from a final judgment on the power of the trial court to grant relief under Rule 60(b). Although Rule 60 (a) specifically permits the trial court to correct clerical mistakes before the appeal is docketed in the appellate court, and thereafter while the appeal is pending with leave of the appellate court, Rule 60(b) is silent on the question. [Parenthetically, we note that Rule 60(a) does not authorize the trial court to set aside a previous ruling where the basis is a legal error. See, e.g., Moore, supra, at \u00a7 60.06(4); Wright & Miller, supra, at \u00a7 2854; Annot., 13 A.L.R. Fed. 794 (1972).] However, with reference to the trial court\u2019s consideration of a Rule 60 (b) motion during the pendency of an appeal from a final judgment, Wright & Miller, supra, at \u00a7 2873, states:\n\u201cThe earlier cases on Rule 60(b) took the view that the district court has no power to consider a motion under the rule after notice of appeal has been filed. This always seemed anomalous since the time for making the motion continues to run while the case is pending on appeal. These cases required a party seeking relief from a judgment during the pendency of an appeal first to present his ground to the appellate court. If it thought that the motion should be heard it would remand the case to the district court for that purpose. One alternative to actual remand was for the appellate court to give permission to the district court to rule on the motion.\n\u201cOther cases have developed a different and more satisfactory procedure. They hold that during the pendency of an appeal the district court may consider a Rule 60 (b) motion and if it indicates that it is inclined to grant it, application can then be made to the appellate court for remand. This procedure is sound in theory and preferable in practice. The logical consequence is that the district court may deny the motion although it cannot, until there has been a remand, grant it, and this seems to be the interpretation followed by many courts . ... \u201d\nTherefore, were we to follow the procedure suggested by Wright' & Miller, we could treat Judge Wood\u2019s order filed on 17 May 1974 as a \u201cclear indication\u201d that plaintiff\u2019s Rule 60(b) motion would be granted if the cause was' remanded for a de novo hearing. Plaintiff has filed a Rule 60(b) motion directly with this Court. Under these circumstances, we could treat plaintiff\u2019s motion as one to remand and enter the appropriate order. However, for the following stated reasons, it is not necessary to remand the case for such a hearing.\nOn 9 May 1974 plaintiff filed the following motion with the trial court:\n\u201cNow Comes the plaintiff and hereby withdraws and abandons the appeal previously taken by her from the judgment dismissing this action for lack of jurisdiction, and withdraws and abandons the notice of appeal from said judgment, dated March 28, 1974.\u201d\nOn 15 May 1974 Judge Wood signed the following order applicable to the motion above-quoted:\n\u201cIt appearing to the Court that the plaintiff gave notice of appeal from the judgment of this court dismissing the action (signed March 18, 1974 and corrected March 27, 1974), but plaintiff has not perfected said appeal and desires to and has withdrawn her appeal; and notice having been duly given, and it having been shown that plaintiff desires to and has abandoned said appeal, it is hereby ordered that said appeal is hereby withdrawn and abandoned.\u201d\nBoth the motion of withdrawal and abandonment and the order allowing same were filed together on 17 May 1974.\nThe filing and granting of the aforesaid motion served to reinvest Judge Wood with jurisdiction over the entire cause. Hence, it follows that Judge Wood had sufficient jurisdictional power on 17 May 1974 to file his order granting plaintiff relief pursuant to Rule 60(b) (1) and (2). The order was therefore legally valid. We have carefully reviewed the findings of fact and conclusions of law recited by Judge Wood in this order, as well as plaintiff\u2019s affidavits relied on therein, and find no abuse of discretion.\nAccordingly, for the reasons stated herein, the judgment of the North Carolina Court of Appeals is reversed and the cause is remanded to that court for the entry of the appropriate judgment and order reinstating the order filed by Judge Wood or\u00ed 17 May 1974 and for further remand of the cause to the Davidson County Superior Court so that the lawsuit might thereafter proceed without further delay.\nReversed and remanded.", "type": "majority", "author": "COPELAND, Justice." } ], "attorneys": [ "Brooks, Pierce, McLendon, Humphrey & Leonard by Hubert Humphrey and Michael D. Meeker and Lambeth, McMillan & Weldon by Charles F. Lambeth, Jr., for plaintiff appellant.", "Walser, Brinkley, Walser & McGirt by Charles H. McGirt and G. Thompson Miller for defendant appellee." ], "corrections": "", "head_matter": "SHERRY PAMELA SINK v. KENNETH WESLEY EASTER, JR.\nNo. 72\n(Filed 27 August 1975)\n1. Rules of Civil Procedure \u00a7 60\u2014 relief from final judgments only\nRule 60(b) of the N. C. Rules of Civil Procedure has no application to interlocutory judgments, orders, or proceedings of the trial court but applies only by its express terms to final judgments.\n2. Rules of Civil Procedure \u00a7\u00a7 56, 60\u2014 interlocutory order \u2014 motion for relief under Rule 60 improper \u2014 motion treated as summary judgment\nDenial of defendant\u2019s Rule 12(b) motion to dismiss for insufficiency of service of process and lack of jurisdiction was an interlocutory order, and defendant\u2019s subsequent Rule 60(b) motion to \u2019dismiss following the Supreme Court\u2019s opinion in plaintiff\u2019s father\u2019s action (which arose from the same automobile accident as plaintiff\u2019s action) was not a proper motion under Rule 60(b); however, the Supreme Court considers defendant\u2019s motion to dismiss as a motion' for summary judgment based on the doctrine of collateral estoppel.\n3. Appeal and Error \u00a7 16\u2014 judgment of dismissal \u2014 correction entered in same term of court \u2014 no error\nWhere the trial court filed a judgment on 21 March .1974 dismissing plaintiff\u2019s action and plaintiff filed notice of appeal on 28 March 1974, the court had jurisdiction to file on 28 March 1974 a correction to the 21 March 1974 judgment and to deny plaintiff\u2019s Rule 60(b) motion for relief from the 21 March 1974 judgment, \u25a0 since the orders were made during the same term in which the original judgment was entered.\n4. Rules of Civil Procedure \u00a7 60\u2014 granting of Rule 60 motion \u2014discretionary matter\nThe trial court erred in denying plaintiff\u2019s Rule 60(b) motion for relief from an earlier judgment of the court on the ground that the court had no discretion to consider the motion, since a motion for relief under Rule 60(b) is addressed to the sound discretion of the trial court, and appellate review is limited to determining whether the court abused its discretion.\n5. Appeal and Error \u00a7 15\u2014 jurisdiction after appeal \u2014 appeal abandoned\nThe general rule that an appeal divests the trial court of jurisdiction becomes inoperative when the trial judge, after due notice and a proper showing, adjudges that the appeal has been abandoned.\n6. Appeal and Error \u00a7 16; Rules of Civil Procedure \u00a7 60\u2014 appeal from dismissal \u2014 adjudication that appeal abandoned\nWhere plaintiff filed a Rule 60(b) motion on 28 March 1974 seeking relief from the trial court\u2019s judgment of dismissal on 21 March 1974, the trial court erroneously denied the motion on 28 March, plaintiff gave notice of appeal on 28 March, the trial court, cognizant of his error, acted on 1 April to set aside his order of 28 March denying plaintiff\u2019s Rule 60(b) motion, and the trial court conducted a hearing on the motion on 1 April, the proceedings of 1 April constituted an adjudication by the court that plaintiff\u2019s prior appeal from the denial of her Rule 60(b) motion had been abandoned. Thus the plaintiff, by appearing at the 1 April hearing,,gave proper notice of her intention to abandon the appeal; therefore, though the trial judge was presiding over a different term of court than that in which the original judgment of dismissal was entered, he still had jurisdiciton to reconsider his prior denial of plaintiff\u2019s'Rule 60(b) motion for relief from that judgment of dismissal.\n7. Appeal and Error \u00a7 15; Rules of Civil Procedure \u00a7 60\u2014 appeal from final judgment \u2014 appeal withdrawn \u2014 power of : trial court to grant relief \" \u00a3\nThe filing and granting of a motion by the plaintiff to withdraw and abandon her appeal from the trial court\u2019s order dismissing her action',for lack of jurisdiction served to reinvest the trial court with jurisdiction over the entire cause, and the court therefore had sufficient jurisdictional power to grant plaintiff\u2019s Rule 60(b) motion for relief from the judgment of dismissal.\nAppeal as of right by plaintiff pursuant to G.S. 7A-30(2) to review decision of the Court of Appeals reported in 23 N.C. App. 296, 208 S.E. 2d 895 (1974) (opinion by Britt, J., Hedrick, J., concurring, Baley, J., dissenting), which vacated the order entered by Wood, J., at the 13 May 1974 Session of Davidson County Superior Court.\nBecause the basic issue here presented involves the effect on this litigation of our prior decision in the action brought by Sherry Sink\u2019s father, James A. Sink, it is necessary to discuss both cases in some detail in order to present fully the factual background giving rise to the instant controversy.\nOn 3 September 1971 James \u00c1. Sink (hereinafter sometimes referred to as James) and his daughter, Sherry Pamela Sink (hereinafter referred to as Sherry), went to the law offices of Charles F. Lambeth, Jr., a member of the Davidson County Bar. At that time, Attorney Lambeth was informed that Sherry had suffered serious personal injuries in an automobile accident on 6 September 1968 while she was riding in a vehicle operated by Kenneth Wesley Easter, Jr.\nOn 4 September 1971 Attorney Lambeth commenced two law suits against defendant, Kenneth Wesley Easter, Jr. One of these actions was instituted on the behalf of Sherry for personal injuries and for medical expenses incurred subsequent to her attainment of majority. The other action was instituted on the behalf of Sherry\u2019s father, James, for Sherry\u2019s medical expenses incurred from the date of the accident until her attainment of majority. Both of these actions were commenced by the issuance of summons\u00e9s pursuant to G.S. 1A-1, Rule 3. Application was made in both cases for an extension of time within which to file the complaints. The clerk found these applications to be in compliance with the statute and ordered (i) that the time for filing the complaints be extended to 24 September 1971, and (ii) that a copy of the application and order be delivered to defendant with a copy of each respective summons. .\nOn 10 September 1971 Deputy Sheriff W. W. Campbell of the Guilford County Sheriff\u2019s Department returned both summonses with the following notation on each: \u201cKenneth Wesley Easter \u2014 not to be found in Guilford county \u2014 in Amsterdam\u2014 address unknown.\u201d\nOn 28 September 1971 both of the complaints were properly filed with the clerk. Thereafter, on 1, 8 and 15 October 1971 notice of service of process by publication was published in the Thomasville Times. Among other things, these notices stated that defendant was required to make defense to such pleadings on or before 11 November 1971.\nOn 11 November 1971 defendant, through his attorney, Charles H. McGirt, made a \u201cspecial appearance\u201d in both actions solely for the purpose of presenting the following identical Rule 12(b) motions: \u201cTo dismiss the action in that the defendant, Kenneth Wesley Easter, Jr., has not been served with process and the court lacks jurisdiction of it.\u201d\nBoth of defendant\u2019s 12(b) motions were heard by Judge Wood at the 13 December 1971 Civil Session of Davidson County Superior Court. At that time, Attorney Lambeth submitted an affidavit of the newspaper publisher indicating publication at the above times. Attorney Lambeth also filed a personal affidavit in both causes in which he stated, inter alia, that subsequent to the return of both summonses with the notation \u201cKenneth Wesley Easter \u2014 not to be found in Guilford County \u2014 in Amsterdam \u2014 address unknown,\u201d he \u201ccalled the residence of the defendant in High Point and was advised that the defendant was in Amsterdam but that the party at his residence did not have his address and did not know how long the defendant would remain in Europe or in Amsterdam, the Netherlands. Therefore summons by publication was instituted.\u201d (Emphasis supplied.)\nOn 27 December 1971 Judge Wood signed identical orders denying defendant\u2019s Rule 12(b) motions. Both orders further provided that defendant had 30 days \u201cwithin which to answer or otherwise plead.\u201d Both orders were subsequently filed on 27 March 1972. Defendant objected and excepted to the entry of both and properly preserved his exceptions for determination upon any subsequent appeal as provided by G.S. 1-277 (b).\nOn 25 April 1972 defendant filed identical answers in both causes in which he denied any negligence on his part and pleaded the following defenses: (i) lack of jurisdiction due\u2019to improper services of process; (ii) statute of limitations, G.S. 1-52; and (iii) contributory negligence.\nAt this point, we believe it would be helpful to state separately the subsequent events in each, case.\nJames A. Sink\u2019s Action\nFollowing the above narrated events, on 4 August 1972 defendant filed a motion for summary judgment in James\u2019 case on the ground that the action was commenced more than three years after the date the cause of action accrued. (No similar motion was filed by defendant in Sherry\u2019s case.) Specifically, defendant contended that the action was not commenced on 4 September 1971 (date summons issued) because the summons and order issued by the clerk extending time to file the complaint had not been served on him. Defendant conceded, however, that the action was properly filed on 23 September 1971 (date complaint filed).\nDefendant\u2019s motion was heard by Judge James M. Long at the 6 November 1972 Session of Davidson County Superior Court. At that hearing, the parties stipulated that defendant \u201cwas out of the State from the last day of August 1971, until the 1st day of November 1971!\u2019 and that \u201csummons was issued for defendant . . . within the period of limitations\u201d and further that \u201cit could not be personally served on defendant . . . . \u201d On 22 November 1972 Judge Long filed an order allowing defendant\u2019s motion on the ground that the action was barred by the statute of limitations.\nThe aforementioned order was excepted to and appeal was taken to the North Carolina Court of Appeals. That court, in an opinion reported in 19 N.C. App. 151, 198 S.E. 2d 43 (1973), reversed on two grounds: (i) the action was commenced on 4 September 1971 and the fact service by publication was made subsequent thereto was of no consequence; and (ii) the defendant was estopped from raising the failure of plaintiff to mail a\u2019 copy of the complaint because of his stipulation that \u201cdefendant was served by publication.\u201d\nOn certiorari this Court, in an opinion by Justice Huskins, reported in 284 N.C. 555, 202 S.E. 2d 138 (1974), reversed the decision of the Court of Appeals and remanded with instructions to dismiss the action for lack of jurisdiction. The grounds for the decision were as follows:\n(1) Defendant, on the facts presented, was not subject to service of process by publication since \u201cplaintiff could have and therefore should have effected personal service of process by leaving copies of the summons and court order at defendant\u2019s High Point residence with a person of suitable age and discretion living there ; and\n(2) Even if defendant was subject to service of process by publication, which he was not, such service was fatally defective \u201cfor failure to mail a copy of the notice of service of process by publication to defendant\u2019s known High Point address.\u201d\nThis Court concluded the opinion as follows:\n\u201cWhen the summons was returned unserved by the Sheriff of Guilford County, plaintiff did not continue the action in existence by securing an endorsement upon the original summons for an extensison of time within which to complete service of process, Rule 4(d) (1), and did not sue out an alias or pluries summons returnable in the same manner as the original process pursuant to Rule 4(d) (2). This action was therefore discontinued ninety days after Ip September 1971, the date the summons was issued. Rule 4(e). Thereafter, the court was without authority to entertain defendant\u2019s motion for summary judgment or to enter any judgment in the action commenced on Ip September 1971 except a formal order of dismissal. [Citation omitted.] Defendant\u2019s stipulation long after the action was discontinued that \u2018after the period of - limitation had run, defendant was served by publication,\u2019 could not and did not revive the action.\u201d 284 N.C. at 561, 202 S.E. 2d at 143. (Emphasis supplied.) This opinion was filed on 25 January 1974. ;\nSherry Pamela Sink\u2019s Action\nIt appears from the record that Sherry\u2019s case remained in limbo from 25 April 1972 (date defendant filed answer) until 7 February 1974. On this latter date defendant filed a motion pursuant to G.S. 1A-1, Rule 60(b)(6), to dismiss Sherry\u2019s action on the grounds that the court\u2019s prior denial of his Rule 12(b) motion (entered 27 December 1971 and filed 27 March 1972) was \u201cirregular and void\u201d by reason of the opinion of this Court in James\u2019 case.\nJudge Wood subsequently heard arguments on defendant\u2019s 60(b) (6) motion at the 18 February 1974 Session of Davidson County Superior Court. Thereafter, in a letter to Judge Wood dated 20 February 1974 (filed 21 February 1974) Attorney Lambeth stipulated that the judgment on defendant\u2019s motion in Sherry\u2019s case could be rendered out of term and out of district. In this same letter, Attorney Lambeth made the following suggestion:\n\u201cWe plan to petition the Supreme Court for a rehearing in the case of James A. Sink v. Kenneth Wesley Easter, Jr. If you will withhold signing the judgment in the above case [Sherry\u2019s] until there is a final determination in the petition to rehear it might very well result in a considerable saving in litigation expenses for everyone concerned.\u201d\nOn 6 March 1974 James A Sink filed a petition with this Court to rehear his case reported in 284 N.C. 555, 202 S.E. 2d' 138, on the grounds of \u201cnewly discovered evidence, and also a matter overlooked and an error of law; ...\u201d At this point, we quote directly from Mr. Sink\u2019s petition:\n\u201cThe attached affidavits constitute newly discovered evidence clearly establishing that 102 Woodlawn Drive, High Point, N. C. was not, in fact, the residence or usual place of abode or address of defendant at the time service was attempted on his person in the fall of 1971. In reaching' its conclusion that the defendant was a resident of High Point with an address at 102 Woodlawn Drive, this Court relied on the original affidavit filed by Charles F. Lam-beth, Jr., attorney for the plaintiff, containing an inadvertent and incorrect reference to 102 Woodlawn Drive as if it were the defendant\u2019s residence, when in fact what was meant was that this was his former or last known address. Prior to the Court\u2019s decision the plaintiff\u2019s affidavit as a source of admission of defendant\u2019s residence had never been raised by the parties and is not mentioned for this purpose anywhere in the record or the briefs. The official statement of the Sheriff on his return that personal service could not be had on defendant at 102 Woodlawn Drive, High Point, N. C., that he was out of the United States and that his address was unknown, had been accepted by the parties, and by the Superior Court and the Court of Appeals. Until this issue was raised plaintiff was not in a position to expect or prepare for it. All of the accompanying affidavits and documentary evidence is newly discovered evidence. None of this evidence was in plaintiff\u2019s possession during any stage of this case prior to the present petition.\u201d\nAttached to this petition to rehear were seven affidavits all of which tended to show that defendant was riot, in fact, a resident nor did he have his address at 102 Woodlawn Drive, High Point, N. C., in 1971 when personal service was sought to be obtained.\nJames A. Sink\u2019s petition to rehear was denied by this Court on 15 March 1974. See 285 N.C. 597. Thereafter, on 18 March 1974 Sherry filed with Judge Wood the same affidavits presented to this Court by James E. Sink in his petition to rehear. Also, on this same date (18 March), Judge Wood signed a judgment granting defendant\u2019s Rule 60 (b) (6) motion and dismissing Sherry\u2019s action \u201cfor lack of jurisdiction.\u201d This judgment was \u25a0filed on 21 March 1974.\nThereafter, on 27 March 1974, Sherry submitted a motion pursuant to G.S. 1A-1, Rule 60(b) (1) & (2), seeking relief from the judgment of dismissal filed on 21 March 1974 on the grounds of mistake, inadvertence, etc., and newly discovered evidence. In support of this motion, she relied on the affidavits previously filed with the court on 18 March. Also on this same date (27 March), Judge Wood signed a correction of the judgment filed on 21 March 1974. In this Correction of Judgment, Judge Wood stated, inter alia, that:\n\u201cAt the time of the consideration of the defendant\u2019s motion to dismiss and prior to the ruling of the Court and rendition of Judgment the plaintiff offered certain affidavits and other evidence relating to said matter, which were duly filed on March 18, 1974, and are part of the record in this case. Said affidavits and evidence were not considered by this Court in ruling upon the motion to dismiss in this case inasmuch as this Court determined and ruled that in view of the decision of the Supreme Court of North Carolina in the case of James A. Sink v. Kenneth Wesley Easter, Jr., 284 N.C. 555 (1974), this Court had no jurisdiction to consider such affidavits and evidence.\u201d\nThe foregoing Correction of Judgment was filed on 28 March 1974. On this same date Sherry objected and excepted to the judgment dismissing her action and gave notice of appeal to the Court of Appeals. Judge Wood signed appeal entries and Sherry was given 60 days in which to serve her case on appeal.\nAlso, on 28 March 1974, Judge Wood filed an order denying Sherry\u2019s Rule 60(b) motion \u201cas a matter of law inasmuch as this Court has no jurisdiction to consider said matters, based upon the decision of the Supreme Court of North Carolina in James A. Sink v. Kenneth Wesley Easter, Jr., 284 N.C. 555 (1974).\u201d Sherry objected and excepted to the denial of this motion and gave notice of appeal to the Court of Appeals. Judge Wood signed the appropriate appeal entries and Sherry was given 60 days to serve her case on appeal.\nThereafter, on 1 April 1974 Judge Wood, in open court and on his own motion, told the parties that he was setting aside the previous order filed on 28 March 1974 denying Sherry\u2019s Rule 60(b) motion \u201cfor the reason that the Court takes notice of the fact said Court would be in error if it was not aware that this Court had a motion under Rule 60, and under Rule 60 the Court has discretion . \u201d The court then proceeded, over defendant\u2019s objection, to conduct a hearing on this motion.\nOn 9 May 1974 Sherry submitted a motion of \u201cwithdrawal and abandonment\u201d of her appeal previously taken from the judgment granting defendant\u2019s Rule 60(b) (6) motion and dismissing her action for lack of jurisdiction. On 15 May 1974 Judge Wood signed an order allowing this motion of \u201cwithdrawal and abandonment.\u201d This order was filed on 17 May 1974.\nOn 16 May 1974 Judge Wood signed an order allowing Sherry\u2019s Rule 60(b) motion; setting aside the judgment of dismissal filed 21 March 1974, as corrected on 28 March 1974; and denying defendant\u2019s Rule 60(b) (6) motion to dismiss the action for lack of jurisdiction. This order was filed on 17 May 1974.\nOn 21 May 1974 defendant objected and excepted to the actions of Judge Wood and gave notice of appeal to the North Carolina Court of Appeals. That court, as previously noted, vacated the order filed on 17 May 1974 on the grounds that Judge Wood was without jurisdiction to reconsider his previous denial of Sherry\u2019s Rule 60(b) motion on 1 April 1974.\nDue to the complexity of this case, we believe the following table of all relevant dates pertinent to Sherry\u2019s case will be helpful. The table is arranged in chronological order and the special significance of each date is indicated.\nDate Significance\n1. 6 September 1968 Cause of action accrued.\n2. 4 September 1971 Action commenced by issuance of summons pursuant to Rule 3. Order granted giving plaintiff 20 days to file complaint.\n3. 10 September 1971 Sheriff returned suit papers with notation \u201cEaster not to be found in Guil-ford County \u2014 in Amsterdam \u2014 address unknown.\u201d\n4. 23 September 1971 Formal complaint filed with clerk.\n5. 1, 8 & 15 October 1971 Notice of service of process by publication published in Thomasville Times.\n6. 11 November 1971 Defendant made \u201cspecial appearance\u201d and filed Rule 12(b) motion to dismiss for insufficiency of service of process and lack of jurisdiction.\n7. 13 December 1971 Hearing before Judge Wood on defendant\u2019s 12(b) motion.\n8. 27 December 1971 Judge Wood signed an order denying defendant\u2019s 12(b) motion and ordered him to answer the complaint within 30 days. Defendant objected and preserved his exception pursuant to G.S. 1-277(b).\n9. 27 March 1972 The above order denying defendant\u2019s 12(b) motion was filed.\n10. 25 April 1972 Defendant filed answer in which he denied negligence and pleaded the defenses of lack of jurisdiction, statute of limitations and contributory negligence.\n11. 25 January 1974 This Court filed its opinion in the case of James A. Sink (father). 284 N.C. 555, 202 S.E. 2d 138.\n12. 7 February 1974 Defendant filed a motion pursuant to Rule 60(b)(6) to dismiss the action on the grounds that the prior denial of his 12(b) motion was \u201cirregular and void\u201d by reason of the decision in 284 N.C. 555.\n13. 18 February 1974 Judge Wood heard arguments on defendant\u2019s rule 60(b)(6) motion.\n14. 21 February 1974 Plaintiff\u2019s attorney, by letter to Judge Wood, stipulated that he could rule on defendant\u2019s motion out of term and out of district. He also informed Judge Wood that he planned to file a petition to rehear 284 N.C. 555 and requested that he withhold signing the judgment on defendant\u2019s motion until this Court had acted on the petition to rehear.\n15. 6 March 1974 Petition to rehear 284 N.C. 555 was filed with this Court.\n16. 15 March 1974 This Court denied the petition to rehear 284 N.C. 555. See 285 N.C. 597.\n17. 18 March 1974 Plaintiff filed same affidavits submitted to this Court in petition to rehear 284 N.C. 555.\n18. 21 March 1974 Judge Wood filed a judgment allowing defendant\u2019s Rule 60 (b) (6) motion and dismissing plaintiffs cause for lack of jurisdiction (relying on 284 N.C. 555).\n19. 27 March 1974 Plaintiff submitted a motion pursuant to Rule 60 (b) for relief from the judgment filed on 21 March 1974 on the grounds of mistake, inadvertence, etc. and newly discovered evidence.\n20. 28 March 1974 Plaintiff\u2019s 60(b) motion was filed.\n21. 28 March 1974 Judge Wood filed a Correction of Judgment, signed on 27 March 1974, to the judgment filed on 21 March and stating that he did not consider any of the affidavits filed by plaintiff on 18 March 1974 in ruling on defendant\u2019s Rule 60(b) (6) motion.\n22. 28 March 1974 Plaintiff objected to the corrected judgment granting defendant\u2019s Rule 60(b)(6) motion and gave notice of appeal to the Court of Appeals. Judge Wood entered proper appeal entries.\n23. 28 March 1974 Judge Wood signed and filed an order denying plaintiff\u2019s 60(b) motion on the grounds that he had no discretion to consider it based on the decision in 284 N.C. 555.\n24. 28 March 1974 Plaintiff objected to the denial of her 60(b) motion and gave notice of appeal to the Court of Appeals. Judge Wood made proper appeal entries.\n25. 1 April 1974 Judge Wood, on his own motion, set aside the denial of plaintiff\u2019s 60(b) motion (#23) on the grounds that he had not been aware that he had any discretion to consider such a motion when he denied same. Thereafter, over defendant\u2019s objection, Judge Wood held a hearing on plaintiff\u2019s 60(b) motion.\n26. 9 May 1974 Plaintiff submitted a motion to \u201cwithdraw and abandon\u201d her appeal from the judgment granting defendant\u2019s 60(b)(6) motion to dismiss (#\u2019s 18 & 21).\n27. 15 May 1974 Judge Wood signed an order allowing the above motion (#26).\n28. 16 May 1974 Judge Wood signed an order granting plaintiff\u2019s 60(b) motion; setting aside the judgment of dismissal filed 21 March, as amended 28 March; and denying defendant\u2019s Rule 60(b)(6) motion to dismiss.\n29. 17 May 1974 The above order (#28) was filed. Also, the order (#27) allowing plaintiff\u2019s withdrawal and abandonment of appeal was filed.\n30. 21 May 1974 Defendant objected and excepted and gave notice of appeal to the Court of Appeals.\nBrooks, Pierce, McLendon, Humphrey & Leonard by Hubert Humphrey and Michael D. Meeker and Lambeth, McMillan & Weldon by Charles F. Lambeth, Jr., for plaintiff appellant.\nWalser, Brinkley, Walser & McGirt by Charles H. McGirt and G. Thompson Miller for defendant appellee." }, "file_name": "0183-01", "first_page_order": 203, "last_page_order": 221 }