In re the Will of Edgerton

BRITT, Judge. Caveator contends that by allowing the movants to amend their motions and then conducting a hearing in which oral testimony was allowed, the trial court converted the motions to dismiss into motions for summary judgment, and that the court erred in hearing the motions without providing caveator with sufficient notice or time to prepare for the hearing. We think the contention has merit. There is nothing in the record to show that when caveator appeared in superior court on 11 November 1974 that there was anything before the court except the motion filed by the executrix and executors asking the clerk to dismiss the caveat, which motion, on the clerk’s initiative and over the objection of mov474 ants and caveator, was transferred to the judge for hearing. In fact, the record does not disclose that the motion to dismiss filed by the Society of Friends was ever transferred from the clerk. It is our view that 11 November 1974, when the court evidently allowed movants’ oral requests to amend their motions to dismiss to show that they were proceeding under Rule 12(b) (1), (2) and (6) and Rule 56, was the earliest date that caveator had notice of any motion for summary judgment. G.S. 1A-1, Rule 56(c) expressly provides for at least 10 days’ notice of the date set for the hearing on a motion for summary judgment. Our Supreme Court has stated several times that “. . . [s]ince this rule provides a somewhat drastic remedy, it must be used with due regard to its purposes and a cautious observance of its requirements in order that no person shall be deprived of a trial on a genuine disputed factual issue . . . . ” Kessing v. Mortgage Corp., 278 N.C. 523, 534, 180 S.E. 2d 823 (1971) ; Savings & Loan Assoc. v. Trust Co., 282 N.C. 44, 191 S.E. 2d 683 (1972) ; Page v. Sloan, 281 N.C. 697, 190 S.E. 2d 189 (1972) ; and Singleton v. Stewart, 280 N.C. 460, 186 S.E. 2d 400 (1972). See also J. Sizemore, General Scope and Philosophy of the New Rules, 5 Wake Forest Intra. L. Rev. 1, 27 (1969). By receiving oral testimony, the trial court clearly proceeded under Rule 56 and caveator was not given proper notice. G.S. 1A-1, Rule 12(b). For that reason, the judgment must be vacated. We express no opinion as to the merits of the caveat or the validity of the writing purportedly signed by caveator. Under proper circumstances the validity and effect of the writing might be tested by motion for summary judgment. The judgment is vacated and the cause is remanded for further proceedings. Judges Hedrick and Martin concur.