WALKER FRAMES v. SHIVELY

No. COA95-688.

473 S.E.2d 776 (1996)

WALKER FRAMES, a Division of B.P. Land Development, Inc., Plaintiff, v. William Ray SHIVELY and Dewey Lester Shively, Defendants.

Court of Appeals of North Carolina.

August 20, 1996.


Attorney(s) appearing for the Case

Hammond & Hammond by L.T. Hammond, Jr., Asheboro, for plaintiff-appellant.

Moser, Schmidly, Mason & Roose by Stephen S. Schmidly, Asheboro, for defendant-appellees.


EAGLES, Judge.

We first address plaintiff's argument that the trial court erred in failing to vacate a judgment that is void as a matter of law. Plaintiff argues that defendants could not assert a claim for damages in a motion after plaintiff, through counsel, had already taken a voluntary dismissal pursuant to Rule 41(a). We agree.

On 11 April 1994, plaintiff's attorney validly took a voluntary dismissal in open court pursuant to Rule 41(a)(1)(i) as noted...

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