Sawyer v. Cox, No. 7721SC366
| Docket Nº | No. 7721SC366 |
| Citation | 244 S.E.2d 173, 36 N.C.App. 300 |
| Case Date | May 16, 1978 |
| Court | Court of Appeal of North Carolina (US) |
Page 173
Sawyer, Deceased, Substituted Party Plaintiff,
v.
John H. COX, M. D., Defendant.
Certiorari Denied by Supreme Court July 14, 1978.
Erwin & Beaty by James A. Beaty, Jr., Winston-Salem, for substituted party plaintiff.
Robert B. Wilson, Jr., Winston-Salem, for defendant.
MORRIS, Judge.
Defendant raises two primary questions for this Court: (1) Was judgment by default properly entered? (2) If so, should that judgment be set aside under Rule 60(b)?.
Defendant advances four arguments to support his contention that judgment by default was erroneously entered. We will address each argument separately.
Page 176
First, defendant asserts that the clerk's entry of default was improper in that no written application for entry of default was made. Rule 55(a) of the Rules of Civil Procedure provides that "(w)hen a party against whom a judgment . . . is sought has failed [36 N.C.App. 304] to plead . . . and that fact is made to appear by affidavit, motion . . . or otherwise, the clerk shall enter his default." Rule 55(a) provides for the use of affidavit or motion or some other method. The use of the disjunctive rather than the conjunctive suggests that the use of a written motion is not mandatory. While it may be better practice to file a written motion, we do not believe that the use of a written motion is mandatory.
Second, defendant asserts that there was no jurisdictional basis for the judgment by default because of failure to comply with G.S. 1-75.11. For the purposes of this discussion we will assume that defendant did not appear. Defendant points to two defects. (1) He asserts that the 11 August 1976 affidavit supporting the judgment, as required by G.S. 1-75.11, was defective in stating that "defendant . . . is not an infant, and neither is he incompetent nor suffering under any known legal disability." He argues that Rule 4(j) requires that the person so served be competent at the time of service (in this case 6 July 1976). In short, defendant urges this Court to hold that the affidavit is legally insufficient because it did not state that defendant was not incompetent on 6 July 1976. Defendant offers no evidence at all to show that he was in fact incompetent. He merely relies upon the technical defect. In developing the philosophy of the new Rules of Civil Procedure in this State, we have generally adopted the philosophy of interpretation of the Federal Rules of Civil Procedure in interpreting the Rules liberally and disregarding technicalities. Johnson v. Johnson, 14 N.C.App. 40, 187 S.E.2d 420 (1972). In the absence of some evidence of incompetence, we are not willing to apply the Rules as technically as defendant would have us. (2) Defendant argues that G.S. 1-75.11 was violated in that the supporting affidavit failed to state that defendant was a natural person domiciled in the State of North Carolina. We consider both the affidavit and verified complaint. See Bimac...
To continue reading
Request your trial
-
Sides v. Duke University, No. 8314SC1308
...specifically provide the claim for relief alleged by the plaintiff was an indication of its intent that no such claim be created." 36 N.C.App. at 300, 244 S.E.2d at 277. In so concluding, the Court may not have read the legislative intent as to retaliatory discharge actions aright. In ......
-
Dockery v. Lampart Table Co., No. 7718SC500
...to be found in G.S. 95-83 providing for recovery of damages in tort by an employee who is terminated for union activities or for failing [36 N.C.App. 300] to engage in union activities. G.S. 95-83; Willard v. Huffman, 247 N.C. 523, 101 S.E.2d 373 (1958). Our General Assembly having made suc......
-
Peebles v. Moore, No. 7910SC1163
...it may be better practice to file a written motion, . . . the use of a written motion is (not) mandatory." Sawyer v. Cox, 36 N.C.App. 300, 304, 244 S.E.2d 173, 176, cert. denied, 295 N.C. 467, 246 S.E.2d 216 (1978). Default shall be entered "(w)hen a party against whom a judgment ......
-
Bailey v. Gooding, No. 798SC538
...before a superior court judge to hear the application for Page 639 judgment. Proper notice was given to defendants. See Sawyer v. Cox, 36 N.C.App. 300, 244 S.E.2d 173, cert. den., 295 N.C. 467, 246 S.E.2d 216 The case was before the trial court on a motion by defendants to set aside the ent......
-
Sides v. Duke University, No. 8314SC1308
...specifically provide the claim for relief alleged by the plaintiff was an indication of its intent that no such claim be created." 36 N.C.App. at 300, 244 S.E.2d at 277. In so concluding, the Court may not have read the legislative intent as to retaliatory discharge actions aright. In ......
-
Dockery v. Lampart Table Co., No. 7718SC500
...to be found in G.S. 95-83 providing for recovery of damages in tort by an employee who is terminated for union activities or for failing [36 N.C.App. 300] to engage in union activities. G.S. 95-83; Willard v. Huffman, 247 N.C. 523, 101 S.E.2d 373 (1958). Our General Assembly having made suc......
-
Peebles v. Moore, No. 7910SC1163
...it may be better practice to file a written motion, . . . the use of a written motion is (not) mandatory." Sawyer v. Cox, 36 N.C.App. 300, 304, 244 S.E.2d 173, 176, cert. denied, 295 N.C. 467, 246 S.E.2d 216 (1978). Default shall be entered "(w)hen a party against whom a judgment ......
-
Bailey v. Gooding, No. 798SC538
...before a superior court judge to hear the application for Page 639 judgment. Proper notice was given to defendants. See Sawyer v. Cox, 36 N.C.App. 300, 244 S.E.2d 173, cert. den., 295 N.C. 467, 246 S.E.2d 216 The case was before the trial court on a motion by defendants to set aside the ent......