303 S.E.2d 632 | N.C. Ct. App. | 1983
R.D. SAWYER and wife, Erma Sawyer
v.
Lawrence GOODMAN and Lowell Nelson, T/A Sails Associates.
Court of Appeals of North Carolina.
*633 Aldridge, Seawell & Khoury by G. Irvin Aldridge, Manteo, for plaintiffs-appellees.
White, Hall, Mullen, Brumsey & Small by G. Elvin Small, III, Elizabeth City, for defendant-appellant.
PHILLIPS, Judge.
Although the defendant's motion alleges that the judgment is a nullity, as it would be if he was not properly served with process, instead of the motion being treated as one to set aside a void judgment under Rule 60(b)(4) of the Rules of Civil Procedure, it was treated, perhaps at the defendant's request, as a motion justifying relief for "any other reason" under Rule 60(b)(6). This may have been because it was correctly recognized that the court's jurisdiction over the defendant through valid service of process is amply supported by the record and because of the wide latitude that trial judges have in granting relief from judgments under Rule 60(b)(6). But the trial judge's extensive power to afford relief in situations of this kind is accompanied by a corresponding discretion to deny it, and the only question for our determination, as the appellant recognizes, is whether the court abused its discretion in denying defendant's *634 motion. Sink v. Easter, 288 N.C. 183, 217 S.E.2d 532 (1975).
No abuse of discretion has been shown. Though defendant's affidavit is to the contrary, the evidence which tends to show that defendant did learn about the suit near its beginning and could have contested it had he been so inclined clearly justifies the decision made. There being competent evidence of record on both sides of the issue, its evaluation was for the trial judge, not us. In evaluating the evidence, weight may have been given to the fact that defendant's affidavit does not establish clearly and directly, as situations like this require, that his motion was filed within a reasonable time after learning of the judgment, as the rule requires. Though defendant asserts he did not learn of the suit until he was sued on the judgment in Maryland, his affidavit does not state when that was or what period of time passed before relief from the court was sought. Explicit information about that and any delay that occurred would no doubt have been helpful to the court, since the defendant's motion was not filed until February, 1982 and plaintiffs claim that the Maryland case was filed in 1979.
The order appealed from is therefore
Affirmed.
HEDRICK and WELLS, JJ., concur.
