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63 N.C. App. 387

304 S.E.2d 636

Braun v. Grundman

Court of Appeals of North Carolina · decided 1983-07-19

Relies on Bailey v. Gooding · 46 N.C. App. 622 - Metcalf v. Palmer · Crissman v. . Palmer

Good law ✅— No negative treatment on recordhow we know

Decided 1983-07-19

How this case has been cited

Cited by 8 later decisions — most recently February 2010

8 state decisions

401983199020002010decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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EAGLES, Judge.

¶1 Plaintiff purports to appeal from an order setting aside a judgment as having been entered upon surprise and excusable neglect. G.S. 1A-1, Rule 60(b)(1). Appeals from such orders must be dismissed as interlocutory. Bailey v. Gooding, 301 N.C. 205, 270 S.E. 2d 431 (1980); Metcalf v. Palmer, 46 N.C. App. 622, 265 S.E. 2d 484 (1980).

¶2 Although we need not here address the propriety of the trial court’s action in setting aside the judgment on the grounds of mistake, inadvertence, surprise and excusable neglect, we note that a party is not “surprised” merely when he is alarmed by an action taken by the court, nor merely when he has an erroneous view of the law. Crissman v. Palmer, 225 N.C. 472, 35 S.E. 2d 422 (1945); Endsley v. Supply Corp., 44 N.C. App. 308, 261 S.E. 2d 36 (1979). Furthermore, a party’s voluntary action may estop him from seeking relief from a judgment on the grounds of mistake or *389 excusable neglect. Wright & Miller, Federal Practice & Procedure: Civil § 2858. A party who makes an informed choice as to a particular course of action will not be relieved of the consequences when it subsequently develops that the choice was unfortunate. 7 Moore's Federal Practice § 60.22[2].

¶3 Appeal dismissed.

Judges Whichard and Johnson concur.
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