Lattimore v. Powell

MORRIS, Judge. Although plaintiff’s motion to vacate the summary judgment did not state the rule number under which he was proceeding, as required by Rule 6, General Rules of Practice for the Superior and District Courts, adopted by the Supreme Court pursuant to G.S. 7A-34, effective 1 July 1970, we assume he purported to proceed under G.S. 1A-1, Rule 60. Plaintiff argues that the judgment should be set aside because his present counsel was not made aware of the prior action until after summary judgment was rendered and this is sufficient to establish excusable neglect. Further he contends that the existence of the prior action constitutes newly discovered evidence. It is inconceivable that plaintiff was unaware of the prior action since it was instituted in his behalf and by counsel retained by him. Plaintiff’s failure to apprise his [524] counsel of the prior action is not the attention to his litigation required by our prior decisions. Meir v. Walton, 2 N.C. App. 578, 163 S.E. 2d 403 (1968), cert. denied 274 N.C. 518 (1968); Hodge v. First Atlantic Corp., 6 N.C. App. 353, 169 S.E. 2d 917 (1969), cert. denied 275 N.C. 681 (1969). Nor is the existence of the prior action “newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59 (b).” G.S. 1A-1, Rule 60 (b) (2). To say plaintiff was unaware of an action in-instituted by him would be ludicrous. However, even if it could be said that error was committed in either of the above two respects, the issuance of summons without filing a complaint would not toll the three-year statute of limitations. Assuming the continued applicability of the provisions of former G.S. 1-25, plaintiff’s failure to file a complaint would deprive him of that protection. Little v. Bost, 208 N.C. 762, 182 S.E. 448 (1935). There the Court held that application for extension of time within which to file complaint is not admissible to show identity of the causes of action. “. . . [T]he complaint itself is the only evidence of the cause of action alleged, or intended to be alleged.” 208 N.C. at p. 763. Plaintiff’s contention that the running of the statute of limitations was tolled by the promise of defendant Goodyear in 1965 to pay him when the apartments were refinanced is also without merit. Plaintiff concedes that there is neither allegation nor evidence of any writing required by G.S. 1-26 to repel the bar of the statute of limitations in an action on a contract. Plaintiff further concedes that there is neither allegation nor evidence that defendants requested plaintiff to delay the institution of the action upon their promise to pay the alleged commission. Upon the record before us we find no error in the judgment of the trial tribunal. Affirmed. Judges Brock and Hedrick concur.