Board of Transportation v. Williams
Board of Transportation v. Williams
Opinion of the Court
Defendants argue that the court committed reversible error in failing to find facts and set out conclusions of law in his order denying defendants’ motion for time within which to file answer. They contend that this is required by G.S. 1A-1, Rule 52(a) (1) which requires that “[i]n all actions tried upon the facts without a jury or with an advisory jury, the court shall find the facts specially and state separately its conclusions of law thereon and direct the entry of appropriate judgment.” We think the nonapplicability of this rule to this situation is too obvious to merit discussion. Findings of fact and conclusions of law are required upon entry of an order on a motion only when requested by a party and as provided by Rule 41(b), which is not applicable here. G.S. 1A-1, Rule 52(a) (2). Defendants made no request for findings of fact or conclusions of law.
G.S. 136-107 provides for the exercise of discretion by the court on a motion for extension of time, timely made,. upon good cause shown. The court, in denying defendants’ motion, stated that “after considering the motion and arguments of counsel finds that said motion should be denied.” The court obviously exercised its discretion, having decided that good cause did not exist, and denied the motion. Defendants’ first assignment of error is overruled.
Defendants’ remaining assignment of error is directed to the court’s signing and entering the order of final judgment. They argue that plaintiff failed to follow the provisions of G.S. 1A-1, Rule 55, which contemplates a two stage approach: entry of default by the clerk and, thereafter, entry of judgment by default. Obviously defendants are correct in their interpretation of the requirements of G.S. 1A-1, Rule 55, and if that Rule were applicable here, their position would have merit. However, this proceeding was brought under Chapter 136 of the General Statutes, and those provisions control the procedures to be followed in condemnation proceedings such as the one before us. G.S. 136-107 clearly provides that where no answer is filed, that failure “shall constitute an admission that the amount deposited is just compensation and shall be a waiver of any further proceeding to determine just compensation; in such event the judge shall enter final judgment in the amount deposited and order disbursement of the money deposited to the owner.”
Defendants also argue that Rule 55 requires written notice at least three days prior to the hearing. We have already noted
Finally, they contend that the court was without authority to enter the final judgment without first ruling on their motion for extension of time. Although the record indicates the final judgment was entered on 10 December 1975, and the order denying the defendants’ motion was entered 15 December 1975 (signed 12 December 1975), it is clear from both the record and statements of counsel at oral argument, that the two motions were heard the same day. The fact that the final judgment was entered before the order denying defendants’ motion is obviously merely an inadvertence. This assignment is also overruled.
Affirmed.
Reference
- Full Case Name
- BOARD OF TRANSPORTATION v. JOSEPH M. WILLIAMS, and wife, MARCILE L. WILLIAMS JAMES M. BALEY III, Trustee MOUNTAIN PRODUCTION CREDIT ASSOCIATION
- Cited By
- 2 cases
- Status
- Published