Hamlin v. Austin

270 S.E.2d 558 (1980)

Aaron HAMLIN and Veronica C. Hamlin v. Charles AUSTIN, Bethia Austin, Paul S. Meeker, Edna Meeker, John E. Powell, Joe Powell.

No. 8028DC182.

Court of Appeals of North Carolina.

October 7, 1980.

Stephen Barnwell, Skyland, for plaintiffs-appellants.

Michael D. Meeker, Greensboro, for defendants-appellees, Paul S. Meeker and Edna W. Meeker.

CLARK, Judge.

Plaintiffs' assignments of error, their exceptions, and their arguments in their brief, all relate to alleged errors in the judgment of the trial court entered 10 October 1979. This appeal, however, was taken from the trial court's order entered 5 November 1979 denying plaintiffs' motion to amend the judgment pursuant to N.C. Rules Civ.P. 59(e), G.S. 1A-1. A motion under Rule 59(a) is "addressed to the sound discretion of the trial judge, whose ruling, in the absence of abuse of discretion, is not reviewable on appeal. Glen Forest Corp. v. Bensch, 9 N.C.App. 587, 176 S.E.2d 851 (1970)." In re Brown, 23 N.C.App. 109, 110, 208 S.E.2d 282, 283 (1974). We hold that a motion under Rule 59(e) is similarly addressed to the court's discretion. Plaintiffs' brief did not address the issue of abuse of discretion, neither does such abuse appear on the face of the record.

We note that under App.R. 3(c) the filing of plaintiffs' motion to amend the judgment tolled the running of plaintiffs' time for serving notice of appeal. Plaintiffs had exactly the same period of time to file an appeal from the judgment as from the order: ten days from the denial of the motion to amend. Plaintiffs chose to appeal the order and not the judgment. We cannot permit defendants' 59(e) motion to substitute for a direct appeal from the judgment of the trial court.

Affirmed.

HARRY C. MARTIN and HILL, JJ., concur.