Jenkins v. Jenkins

Jenkins v. Jenkins, 27 N.C. App. 205, 206, 218 S.E.2d 518, 519 (1975), presents circumstances analogous to those here. Defendant did not appear at a hearing, although a member of the defendant's attorney's law firm was present. The attorney moved for a continuance that was denied even though the defendant's regular attorney was in trial in superior court. The trial court heard the evidence in the absence of the defendant when the defendant still failed to appear after he was telephoned. Id. On appeal, the defendant argued that because the plaintiff's counsel misapplied Rule 6(a) of the Rules of Civil Procedure, he was not given the full five-days notice to which he was entitled. The Court held that "defendant does not have an absolute right to the notice requirement of Rule 6" and "a new trial will not be granted for a mere technical error." Jenkins, 27 N.C. App. at 206, 218 S.E.2d at 519. Instead, "it is incumbent on defendant to show he was prejudiced." Id. The Court concluded: "Defendant has not argued any prejudicial harm and we can find none." Id.