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N.C.App.1 FALL SESSION 1973 531
Highfill v. Williamson
60 (b) (6) upon the grounds that the judgments entered in
this action are unfair and unjust and that the interests of
justice will best be served by having them set aside.
Based upon the foregoing findings of fact and con-clusions
of law it is ORDEREDth at the judgments pre-viously
entered in this action shall be and the same are
hereby set aside; and it is further ORDEREtDh at the defend-ant
shall have 30 days from and after the entry of this order
within which to prepare and file answer or otherwise plead
to the complaint of the plaintiff.
This the 3rd day of August, 1972.
JOHN D. McCONNELL
Judge Presiding"
[I] The findings of fact by the trial court upon the hearing
of a motion to set aside a judgment are conclusive on appeal
when supported by competent evidence. The conclusions of law
made by the judge upon the facts found by him are reviewable
on appeal. Moore v. Deal, 239 N.C. 224, 79 S.E. 2d 507 (1954).
We now test the order entered by Judge McConnell in ac-cordance
with that precept.
In Findings of Fact No. 2, Judge McConnell found, "that
James R. Price has been advised that the plaintiff missed no
time from his employment with the Asheboro Police Depart-ment;
that James R. Price has been furnished with medical
information revealing that the plaintiff's injury, if any, sus-tained
in the collision was relatively minor." The record reveals
no competent evidence sustaining such a finding of fact. This
finding of fact is based entirely upon hearsay testimony and
supposition on the part of James R. Price.
121 The first conclusion of law entered by Judge McConnell
is that the defendant made an appearance in this action and was
therefore entitled to receive written notice of the application
for judgment at least three days prior to the hearing. Where
a party has made an appearance in an action, three days' notice
of an application for judgment must be given. Miller v. Belk, 18
N.C. App. 70,196 S.E. 2d 44 (1973). While negotiations between
parties may constitute an appearance in an action, no instance
has been called to our attention nor have we been able to find
one where an appearance was made prior to the institution of
any action. In the instant case all negotiations ceased over three
Object Description
| Title | North Carolina Court of Appeals Reports [v.019, Spring Session 1973 - Fall Session Session 1973] |
| Creator | North Carolina. Court of Appeals. |
| Date | 1974 |
| Subjects | Law reports, digests, etc.--North Carolina; Court records--North Carolina |
| Place | North Carolina, United States |
| Description | Volume 19, Spring Session 1973 - Fall Session Session 1973. Cited as 19 N.C.App. The North Carolina Court of Appeals Reports are the official report of opinions of the North Carolina Court of Appeals. Includes cases and other information about the courts of North Carolina. |
| Publisher | Court of Appeals of North Carolina |
| Agency-Current | North Carolina Court of Appeals, Judicial Department |
| Rights | State Document see http://digital.ncdcr.gov/u?/p249901coll22,63754 |
| Collection | North Carolina State Documents Collection. State Library of North Carolina |
| Type | Text |
| Language | English |
| Format | Reports; Legal documents |
| Digital Characteristics-A | 37.5 MB; 848 p. |
| Serial Title | North Carolina Court of Appeals Reports |
| Digital Collection | North Carolina Digital State Documents Collection |
| Digital Format | application/pdf |
| Pres File Name-M | pubs_serial_courtofappealsreports_vol_019.pdf |
| Pres Local File Path-M | \Preservation_content\StatePubs\pubs_law\images_master\ |
| OCLC Number-Original | 1681248 |
Description
| Title | Page 555 |
| Full Text | N.C.App.1 FALL SESSION 1973 531 Highfill v. Williamson 60 (b) (6) upon the grounds that the judgments entered in this action are unfair and unjust and that the interests of justice will best be served by having them set aside. Based upon the foregoing findings of fact and con-clusions of law it is ORDEREDth at the judgments pre-viously entered in this action shall be and the same are hereby set aside; and it is further ORDEREtDh at the defend-ant shall have 30 days from and after the entry of this order within which to prepare and file answer or otherwise plead to the complaint of the plaintiff. This the 3rd day of August, 1972. JOHN D. McCONNELL Judge Presiding" [I] The findings of fact by the trial court upon the hearing of a motion to set aside a judgment are conclusive on appeal when supported by competent evidence. The conclusions of law made by the judge upon the facts found by him are reviewable on appeal. Moore v. Deal, 239 N.C. 224, 79 S.E. 2d 507 (1954). We now test the order entered by Judge McConnell in ac-cordance with that precept. In Findings of Fact No. 2, Judge McConnell found, "that James R. Price has been advised that the plaintiff missed no time from his employment with the Asheboro Police Depart-ment; that James R. Price has been furnished with medical information revealing that the plaintiff's injury, if any, sus-tained in the collision was relatively minor." The record reveals no competent evidence sustaining such a finding of fact. This finding of fact is based entirely upon hearsay testimony and supposition on the part of James R. Price. 121 The first conclusion of law entered by Judge McConnell is that the defendant made an appearance in this action and was therefore entitled to receive written notice of the application for judgment at least three days prior to the hearing. Where a party has made an appearance in an action, three days' notice of an application for judgment must be given. Miller v. Belk, 18 N.C. App. 70,196 S.E. 2d 44 (1973). While negotiations between parties may constitute an appearance in an action, no instance has been called to our attention nor have we been able to find one where an appearance was made prior to the institution of any action. In the instant case all negotiations ceased over three |
