City of Salisbury v. Kirk Realty Co., Inc.
| Decision Date | 19 August 1980 |
| Docket Number | No. 8019SC70,8019SC70 |
| Citation | 48 N.C.App. 427,268 S.E.2d 873 |
| Parties | CITY OF SALISBURY, North Carolina v. KIRK REALTY CO., INC. |
| Court | North Carolina Court of Appeals |
Coughenour, Linn & Short by Stahle Linn and Carl W. Short, Jr., Salisbury, for petitioner-appellee.
Thomas M. King, Salisbury, for respondent-appellant.
Because the judgment of 2 May 1979 was entered by the Clerk before the expiration of the statutory period of 20 days allowed for the filing of exceptions, it is an irregular judgment, Collins v. Highway Commission, 237 N.C. 277, 74 S.E.2d 709 (1953), but stands as the judgment of the court until set aside by a proper proceeding therefor.
To set aside a judgment for irregularity, it is necessary to make a motion in the cause before the court which rendered the judgment, with notice to the other party. The objection cannot be made by appeal, or an independent action, or by collateral attack. The time for such motion is not limited to one year after the judgment is rendered, but it must be made by the party affected and within a reasonable time to show that he has been diligent to protect his rights. The application should also show that the judgment affects injuriously the rights of the party and that he has a meritorious defense; otherwise, it would be useless to set aside the judgment.
The procedure for setting aside an irregular judgment is now found in G.S. 1A-1, Rule 60(b)(6). See Comment by Dean Dickson Phillips, Wilson and Wilson, 2 McIntosh North Carolina Practice and Procedure, § 1720 p. 93 (2d ed. 1970 Supp.). We do not find anything in the Rule or any comment thereto which changes the requirements from those set out in Collins a showing by the moving party that the judgment affects his rights injuriously and that he has a meritorious defense.
If no request is made by either party to a hearing on a motion, the trial judge is not required to find the facts upon which he bases his ruling. G.S. 1A-1, Rule 52(a)(2). Here neither party requested that the court find facts. No facts were found. "In such case, it will be presumed that the judge, upon proper evidence, found facts sufficient to support his judgment." Haiduven v. Cooper, 23 N.C.App. 67, 69, 208 S.E.2d 223, 225 (1974).
Without the presumption, it is clear from this record that the meritorious defense claimed by respondent is that, in his...
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...it will be presumed that the judge, upon proper evidence, found facts sufficient to support the judgment. City of Salisbury v. Kirk Realty Co., 48 N.C.App. 427, 268 S.E.2d 873 (1980); N.C.Gen.Stat. Sec. 1A-1, Rule 52(a)(2) (1983). LMT did not request the trial court to make findings of fact......
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...presumed that the judge, upon proper evidence, found facts sufficient to support his judgment.'" City of Salisbury v. Kirk Realty Co., Inc., 48 N.C.App. 427, 429, 268 S.E.2d 873, 875 (1980) (quoting Haiduven v. Cooper, 23 N.C.App. 67, 69, 208 S.E.2d 223, 225 (1974)). Therefore, we must revi......