Long v. Reeves

77 N.C. App. 830 | N.C. Ct. App. | 1985

HEDRICK, Chief Judge.

G.S. 1A-1 Rule 1 expressly provides that the North Carolina Rules of Civil Procedure are applicable in proceedings before the Industrial Commission.

G.S. 1A-1, Rule 60(b) provides the means whereby a defendant may be relieved of a judgment. G.S. 97-83, in pertinent part, provides: “Immediately after such application [for a hearing] has been received the Commission shall set the date of a hearing, which shall be held so soon as practicable, and shall notify the parties at issue of the time and place of such hearing.” Industrial Commission Rule XX(2) provides that “[t]he Commission will give reasonable notice of hearing in every case.” The only mention in the entire record regarding “notice” to defendant with respect to the hearing appears under the caption in the record “Proceedings Before Deputy Commissioner Forrest M. Shuford on September 18, 1984.”

At the beginning of the proceeding the following took place:

THE COURT: Charles L. Long versus Charles Reeves. Notice of hearing was sent to Charles Reeves at 3108 Sears Road in Charlotte and it has not been returned but no one on behalf of Charles Reeves has appeared. Mr. Wellons you — I presume want to proceed anyway in the absence of the defendant?

Mr. WELLONS: Yes, Your Honor, we would.

Since the North Carolina Industrial Commission has no rule comparable to G.S. 1A-1, Rule 60(b), and because the rules of civil procedure are applicable, we hold the Industrial Commission should have treated defendant’s motion on 15 November 1984 as one made pursuant to G.S. 1A-1, Rule 60(b) “to be relieved from a judgment.” We will not presume to tell the Commission whether it should proceed under G.S. 1A-1, Rule 60(b)(1), (2), (3), (4), (5) or (6). Suffice it to say, however, the Commission should conduct a hearing on defendant’s motion to determine whether defendant was afforded “reasonable notice” of the hearing which resulted in his being ordered to pay compensation to plaintiff under the Workers’ Compensation Act. The cause is therefore remanded for a hearing on defendant’s motion pursuant to the North Carolina Rules of Civil Procedure.

Remanded.

Judges WELLS and EAGLES concur.