Engines & Equipment, Inc. v. Lipscomb

189 S.E.2d 498 (1972)

ENGINES & EQUIPMENT, INC. v. Joe LIPSCOMB.

No. 7210DC327.

Court of Appeals of North Carolina.

June 28, 1972.

*499 Thompson & Lynn, by Dan Lynn, Raleigh, for plaintiff appellee.

Philip O. Redwine, Raleigh, for defendant appellant.

BRITT, Judge.

Defendant's exceptions and assignments of error 2, 3, 4 and 5, relating to the order entered on 11 January 1972, are not supported in his brief by reason, argument or authority, therefore, said exceptions and assignments of error are deemed abandoned. Rule 28, Rules of Practice in the Court of Appeals of North Carolina. Furthermore, since notice of appeal was given and appeal entries made on 30 November 1971, the trial court was without authority to consider defendant's motion filed on 6 December 1971. Wiggins v. Bunch, 280 N.C. 106, 184 S.E.2d 879 (1971).

The sole question before us is whether the trial court erred in concluding that defendant failed to show excusable neglect and in denying defendant's motion to set aside the default judgment.

Whether excusable neglect has been shown is a question of law, not a question of fact. "`Upon the facts found the court determines, as a matter of law, whether or not they constitute excusable neglect, . . . .' McIntosh, N.C. Practice 2d, § 1717." Ellison v. White, 3 N.C.App. 235, 240-241, 164 S.E.2d 511, 515 (1968), cert. den. 275 N.C. 137 (1969).

In the case at bar, the court's findings of fact included the following (summarized): On or about 18 March 1971 defendant's wife was served with summons and complaint in this cause. Defendant was a long distance truck driver and between 18 March 1971 and 28 March 1971 was transporting materials from North Carolina to California. On or about 5 April 1971 defendant delivered his copy of the summons and complaint to an official of his employer who agreed to deliver the same to an attorney who would defend the action for defendant. Said official thereafter advised defendant that the suit papers had been delivered to an attorney and that an answer denying the material allegations of the *500 complaint had been filed. The representation the official made to defendant was false and no answer was filed on behalf of defendant.

We hold that as a matter of law the facts found by the trial judge do not constitute excusable neglect under G.S. § 1A-1, Rule 60(b)(1).

This case is analogous to Rawleigh, Moses & Co. v. Furniture, Inc., 9 N.C.App. 640, 642-643, 177 S.E.2d 332, 333 (1970), a case that resulted in a finding of no excusable neglect, in which we said: "A review of appellee's motion and affidavit impels us to conclude that appellee did not make out a case of excusable neglect any stronger than, if as strong as, the defendant made out in Johnson v. Sidbury, 225 N.C. 208, 34 S.E.2d 67 (1945). In that case, our Supreme Court upheld a default judgment rendered against the defendant, a medical doctor, which judgment was rendered when the defendant was under the pressure of adverse circumstances and unending demands for his professional services. We quote from the opinion as follows: `While his inattention and neglect are attributed to the similarity in the title of this case to a former action, and to his preoccupation in the duties of his profession, commendable and highly important though they were, we do not think this should be held in law to constitute such excusable neglect as would relieve an intelligent and active business man from the consequences of his inattention, as against diligent suitors proceeding in accordance with the provisions of the statute.'"

Parties who have been duly served with summons are required to give their defense that attention which a man of ordinary prudence usually gives his important business, and failure to do so is not excusable. 5 Strong, N.C. Index 2d, Judgments, § 25, pp. 46-47. We agree with the trial court's conclusion that defendant herein did not meet this test.

Affirmed.

MALLARD, C.J., and CAMPBELL, J., concur.