Campbell v. First-Citizens Bank & Trust Co.

BALEY, Judge. Motions to set aside a final judgment are governed by Rule 60(b) of the North Carolina Rules of Civil Procedure which provides in pertinent part: [634] “On motion and on such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: “(1) Mistake, inadvertence, surprise, or excusable neglect; “(6) Any other reason justifying relief from the operation of the judgment.” Our Supreme Court has stated that “ [i] f a movant is uncertain whether to proceed under clause (1) or (6) of Rule 60 (b) he need not specify if his ‘motion is timely and the reason justifies relief.’ 7 Moore’s Federal Practice § 60.27 (2) (2d ed. 1970).” Brady v. Town of Chapel Hill, 277 N.C. 720, 723, 178 S.E. 2d 446, 448. Under either clause the movant must show he has a meritorious cause of action. Id.; Kirby v. Contracting Co., 11 N.C. App. 128, 180 S.E. 2d 407, cert. denied, 278 N.C. 701, 181 S.E. 2d 602. After final judgment was entered in this case dismissing plaintiff’s action, she then retained counsel who, with diligence, made a motion to set aside the judgment. The order of Judge McLelland which granted the motion and set aside the judgment was not based upon the finding of any mistake, inadvertence, surprise, or excusable neglect. The only reason assigned for his order was that plaintiff was not represented by counsel during the period 1 February 1974 to and including 17 [20] February 1974 when the case was called for hearing. It is significant that the court struck from the drafted order the words “in the discretion of the court” and “for other causes and reasons,” thus relying solely upon the fact that plaintiff was not represented by counsel at the time her action was dismissed. Plaintiff was aware of her scheduled trial and the need to obtain legal counsel in sufficient time to procure such representation. She had consented to the court order on 1 February 1974 which relieved her attorneys from their obligation to appear for her, and there is no finding that any diligent effort was made to secure other legal services. The absence of counsel for plaintiff was before the court and considered when the original judgment of dismissal was entered. Plaintiff did not appeal from that dismissal order or petition for certiorari, but chose to present to a second superior court judge upon motion to set aside the judgment the identical circumstances which re635 suited in the original dismissal for failure to prosecute her action. The only change was that plaintiff had now retained an attorney. In Bank v. Hanner, 268 N.C. 668, 670, 151 S.E. 2d 579, 580, our court said: “The power of one judge of the superior court is equal to and coordinate with that of another, and a judge holding a succeeding term of court has no power to review a judgment rendered at a former term on the ground that the judgment is erroneous. No appeal lies from one superior court judge to another.” See also State v. Jones, 278 N.C. 259, 179 S.E. 2d 433; State v. Kelly, 5 N.C. App. 209, 167 S.E. 2d 881. While Rule 60(b) (6) has been described as “a grand reservoir of equitable power to do justice in a particular case,” 7 Moore’s Federal Practice § 60.27 (2), at 375 (2d ed. 1974), there is no compelling reason shown in this case for the exercise of such equitable power. There is no finding of any unusual or extraordinary circumstances which might explain plaintiff’s failure to prosecute her action. The judgment of dismissal was entered without prejudice to the right of plaintiff to institute a new action within six months under certain prescribed conditions which were not unreasonable. The order of Judge McLelland striking out the judgment of dismissal and reinstating this cause upon the civil issue docket in the Superior Court of Wake County is reversed. Reversed. Judges Britt and Hedrick concur.