Appeal by plaintiff from Long, Judge. Judgment entered 21 April 1981 in District Court, Bertie County. Heard in the Court of Appeals 27 April 1982.
Hill, Judge. Judge Becton concurs in the result. Judge Hedrick dissents.
Plaintiff's complaint alleges that defendant, through his son, was negligent in the operation of a tractor which the latter drove through a stop sign and into plaintiff's automobile, then operated by his wife, causing damage to the automobile. Defendant
answered and denied plaintiff's allegations, alleged contributory negligence and last clear chance, and counterclaimed for damages to the tractor.
When the case was called for trial, the record reveals that neither plaintiff nor his counsel was present; defendant and his counsel were present, however. The trial judge stated, "We will proceed, Mr. Burch, with your counterclaim. After plaintiff being called and there being no response and his counsel not being present, this matter is hereby dismissed with prejudice." Defendant then presented evidence on his counterclaim, and the judge charged the jury. After a twenty minute deliberation, the jury returned and announced its verdict finding plaintiff contributorily negligent and awarding defendant $3,000. Then, apparently the son of plaintiff's counsel addressed the trial judge as follows:
Mr. Jones: Your Honor, may I be heard.
The Court: Yes, Mr. Jones.
Mr. Jones: I give notice of appeal, your Honor. I'd also like to make a motion at this time.
The Court: All right, sir. I'll be delighted to hear from you.
Mr. Jones: I'd like to make a motion to set aside the verdict based on excuse (unintelligible) from the fact that my father was tied up in criminal Superior Court this morning and that he tried to get over here and that he got hung up over there.
The Court: Motion is denied. Anything else, sir?
Judgment for defendant thereupon was entered, and plaintiff gave ...