Volume 106 — North Carolina Court of Appeals Reports

1. Rules of Civil Procedure 55.1 (NCI3d) — entry of default — second service of summons — belief of additional time to answer — no excusable neglect Defendants were not entitled to have an entry of default set aside on the ground of excusable neglect where defendants were served by registered mail, return receipt requested, on 5 June 1990, they were served again on 21 June 1990 by delivery of the summons and complaint to the individual defendant's mother at his dwelling house, and defendants contended that their failure to answer the complaint within thirty days after service of the first summons was excusable because the deputy serving the second summons told the individual defendant's mother that defendants had thirty days after service to respond, since a man of ordinary prudence treating this matter as he would his important business affairs would not believe that the receipt of a second summons negated<page_number>Page 123</page_number> the requirements of the first summons which stated the legal requirements on its face. Am Jur 2d, Judgments 718. 2. Rules of Civil Procedure 55 (NCI3d) — action not for sum certain — summary judgment erroneous The trial court erred in entering summary judgment for plaintiffs in their action to recover for the wrongful cutting of timber because their action was not for a "sum certain" where plaintiffs alleged that the fair market value of the timber was $25,000 but there was no information in the complaint by which it could be determined how that amount was computed. N.C.G.S. <cross_reference>1A-1</cross_reference>, Rule 55(b)(1). Am Jur 2d, Summary Judgment 26, 27.

1. Conspiracy 44 (NCI4th) — armed robberies — single conspiracy Defendant could properly be convicted only for a single conspiracy to commit a series of armed robberies, and three of the four conspiracy convictions against defendant must be vacated and the case remanded for entry of a single judgment on one count of conspiracy, where the evidence tended to show that the participants intended to commit the robberies to acquire cash; the participants were the same each time; the robberies occurred over a two week period; three of the four robberies involved commercial establishments; and in each case the participants were armed, wore masks and gloves, forced those present to lie face down on the floor, and primarily took cash. Am Jur 2d, Conspiracy 11.<page_number>Page 343</page_number> 2. Receiving Stolen Goods 5.1 (NCI3d) — possession of stolen property — knowledge that property stolen The State presented sufficient evidence in a prosecution for possession of stolen property to show that defendant knew or had reasonable grounds to believe that a pistol he possessed was stolen where it tended to show that the pistol was stolen during a break-in of a residence; defendant used the pistol in a subsequent robbery; when officers chased an automobile occupied by defendant and another person, defendant took the pistol from his coat and gave it to the other person to dispose of; and officers subsequently found the automobile abandoned and the pistol lying on the ground nearby. Am Jur 2d, Criminal Law 136. 3. Evidence and Witnesses 300 (NCI4th) — conviction thirteen years earlier — similarity and remoteness — admissibility to show modus operandi, motive and identity Evidence of defendant's 1975 conviction of armed robbery was sufficiently similar to the crimes charged and not too remote to be admissible in defendant's trial for six 1988 robberies for the purpose of showing modus operandi, motive and identity where defendant was armed, wore a ski mask and gloves, ordered the people present to lie face down on the floor, and took cash in both the 1975 and 1988 robberies, and defendant spent eight of the thirteen years between 1975 and 1988 in prison. Am Jur 2d, Evidence 326. <block_quote> Robbery: Admissibility in robbery prosecution of evidence of other robberies. 42 ALR2d 854.</block_quote>

1. Divorce and Separation 68 (NCI4th) — divorce — incurable insanity — finding that mentally ill defendant not insane — no error The trial court did not err in a divorce action by finding and concluding that defendant was not incurably insane where plaintiff had filed for a divorce based on one year's separation; defendant asserted incurable insanity as an affirmative defense; the evidence clearly demonstrated defendant's incurable mental illness; and the evidence before the court in its totality showed that defendant, although mentally ill, usually understands what she is engaged in doing and the nature and consequences of her acts. Am Jur 2d, Divorce and Separation 88. <block_quote> Insanity as substantive ground for divorce or separation. 24 ALR2d 873.</block_quote> 2. Evidence and Witnesses 2630 (NCI4th) — divorce — insanity of spouse — opinion of attorneys — admissible There was no prejudicial error in a divorce action in which defendant claimed to be incurably insane where the court admitted testimony from two attorneys who had represented defendant in matters other than the divorce. It is the substance of the attorney-client communication that is protected and not the fact that there have been communications or the attorney's observations of the client's physical characteristics such as demeanor, bearing, sobriety or dress. The attorneys here also testified to the substance of several communications made by defendant to them in the course of their legal representation of her; nevertheless, given the evidence properly admitted on the issue of defendant's mental state, the error was not prejudicial. Am Jur 2d, Witnesses 402.<page_number>Page 607</page_number>