Value Homes, Inc. v. Harris , 23 N.C. App. 705 ( 1974 )

HEDRICK, Judge.

Defendant’s motion to set aside the judgment dated 7 June 1973 was made pursuant to G.S. 1A-1, Rule 60(b) (4), which in pertinent part provides:

“On motion and upon such terms as are just, the court may relieve a party or his legal representative from, a • final judgment, order, or proceeding for the following reasons:

(4) The judgment is void; * * *”

Defendant argues that the judgment is void because the amended complaint was not personally served upon the. defendant. We, do not agree. The record before us shows conclusively that the court had jurisdiction to enter the order dated 21 November 1966 allowing plaintiff thirty days within which to file an amended complaint. We are aware of no statute or legal precedent antedating the rules of civil procedure effective 1 January 197Q. which required that an amended complaint filed pursuit to a valid order of the superior court be served personally on the defendant by an officer or otherwise. The record and the unchallenged findings of fact made by the trial judge show clearly that the amended complaint was duly filed by the plaintiff pursuant to a valid order of the court and that a copy thereof was, delivered to the defendant’s attorney of record. Defendant’s failure to file answer or otherwise defend herself against the proceeding did not divest the court of jurisdiction to proceed to judgment. Defendant has failed to show that the judgment is void or that she is in any way entitled to be relieved therefrom pursuant to Rule 60 (b) (4).

Affirmed.

Judges Morris and Baley concur.