Story v. Story

• Decision Date: 05 November 1975
• Docket Number: No. 7522DC611,7522DC611
• Citation: 219 S.E.2d 245,27 N.C.App. 349
• Parties: Xola M. STORY, Plaintiff (Appellee), v. John Preston STORY, Defendant (Appellant).
• Court: North Carolina Court of Appeals

Page 245

219 S.E.2d 245

27 N.C.App. 349

Xola M. STORY, Plaintiff (Appellee), v. John Preston STORY, Defendant (Appellant).

No. 7522DC611.

Court of Appeals of North Carolina.

Nov. 5, 1975.

Walser, Brinkley, Walser & McGirt by G. Thompson Miller, Lexington, for plaintiff appellee.

Ned A. Beeker, Lexington, for defendant appellant.

HEDRICK, Judge.

Defendant first contends that the trial court was without authority to dismiss the appeal in that defendant did not receive the five-day statutory notice provided for in Rule 6(a) for hearings on motions. The record shows that defendant received notice on 16 April 1975 and attended the hearing on 22 April 1975. As provided by Rule 6(a) in not counting Saturdays and Sundays, it is true that defendant had less than five days notice; but defendant has brought forth no argument that he was in any way prejudiced by lack of proper notice. Brandon v. Brandon, 10 N.C.App. 457, 179 S.E.2d 177 (1971). And, it is well settled that '(a) party who is entitled to notice of a motion may waive notice. A party ordinarily does this by attending the hearing of the motion and participating in it.' Collins v. Highway Comm., 237 N.C. 277, 283, 74 S.E.2d 709, 714--15 (1953). Accord, In re Woodell, 253 N.C. 420, 117 S.E.2d 4 (1960); Brandon v. Brandon, supra. This assignment of error is without merit.

Defendant contends the trial judge erred in holding that the fifty-day period of time within which 'the case on appeal' was to be served on plaintiff commenced to run on 20 February 1975 instead of 6 March 1975, the date Judge Olive actually signed the judgment theretofore rendered on 20 February in open court.

G.S. 1--287.1 in pertinent part provides:

'When it appears to the court that statement of case on appeal to the Appellate Division has not been served on the appellee or his counsel within the time allowed, it shall be the duty of the judge, upon motion by the appellee, to enter an order dismissing such appeal . . ..'

G.S. 1--282 in pertinent part provides:

'A copy of . . . (the case on appeal) shall be served on the respondent within fifteen days from the entry of the appeal taken . . .. If it appears that the case on appeal cannot be served within the time prescribed above, the trial judge may, for good cause and after reasonable notice to the opposing party or counsel, enter an order or successive orders extending the time for service of the case on appeal. . . . The initial order of extension must be entered prior to expiration of the statutory time for service of the case on appeal, and any subsequent order of extension must be entered prior to the expiration of the time allowed by the preceding order . . ..'

G.S. 1A--1, Rule 58, in pertinent part provides:

'In other cases where judgment is rendered in open court, the clerk shall make a notation in his minutes as the judge may direct and such notation shall constitute the entry of judgment for the purposes of these rules. The judge shall approve the form of the judgment and direct its preparation and filing.'

Since the time for the service of the case on appeal commences to run from the time of 'the entry of the appeal taken', G.S. 1--282, and there can be no appeal until there has been an entry of judgment, we must first determine in this case whether judgment was entered on 20 February or 6 March 1975. We think the record before us clearly shows judgment was entered in open court on 20 February 1975.

The only finding of fact excepted to by defendant in the order dismissing the appeal is 'that the Clerk entered the court's judgment in the minutes and also entered the defendant's notice of appeal in the minutes'. Defendant does not contend that the clerk did not 'make a notation in his...