Bailey v. Gooding

• Citation: 45 N.C.App. 335,263 S.E.2d 634
• Decision Date: 04 March 1980
• Docket Number: No. 798SC538,798SC538
• Parties: Patricia T. BAILEY and Ebert L. Bailey, Jr. v. Marvin C. GOODING, Seashore Transportation Company and Carolina Coach Company.
• Court: Court of Appeal of North Carolina (US)

Page 634

263 S.E.2d 634

45 N.C.App. 335

Patricia T. BAILEY and Ebert L. Bailey, Jr. v. Marvin C. GOODING, Seashore Transportation Company and Carolina Coach Company.

No. 798SC538.

Court of Appeals of North Carolina.

March 4, 1980.

Freeman, Edwards & Vinson by George K. Freeman, Jr., Goldsboro, and Narron, Holdford, Babb, Harrison & Rhodes by William H. Holdford, Wilson, for plaintiffs appellants.

Young, Moore, Henderson & Alvis by B. T. Henderson, II and Robert C. Paschal, Raleigh, for defendants appellees.

VAUGHN, Judge.

This appeal arises out of the attempt by plaintiffs to obtain a default judgment. On 17 October 1977, they obtained an entry of default before the clerk of superior court.

Entry. When a party against whom a judgment for affirmative relief is sought has failed to plead or is otherwise subject to default judgment as provided by these rules or by statute and that fact is made to appear by affidavit, motion of attorney for the plaintiff, or otherwise, the clerk shall enter his default.

G.S. 1A-1, Rule 55(a). The entry of default by the clerk was properly taken and entered. The entry of default is an interlocutory, ministerial duty looking towards the final entry of judgment by default. It is merely a matter of form. Whaley v. Rhodes, 10 N.C.App. 109, 177 S.E.2d 735 (1970). Plaintiffs through an affidavit made it appear that defendants had not answered their complaint within the time required by the Rules of Civil Procedure. G.S. 1A-1, Rules 6, 7, 12(a)(1). Plaintiffs properly demonstrated they were entitled to an entry of default.

The clerk of superior court could not, however, enter default judgment. The clerk can enter default judgment only when (1) plaintiff's claim is for a sum certain or for a sum that can be made certain by computation and (2) the defendant is defaulted for failure to appear and is not an infant or incompetent person. G.S. 1A-1, Rule 55(b)(1); Roland v. Motor Lines, 32 N.C.App. 288, 231 S.E.2d 685 (1977). This personal injury suit does not present a claim for a sum certain and plaintiff's complaint expressly requests that a jury determine the amount of the claim. Thus, plaintiff properly applied to a judge of the superior court.

(b) Judgment. Judgment by default may be entered as follows:

(2) By the Judge. In all other cases the party entitled to a judgment by default shall apply to the judge therefor; but no judgment by default shall be entered against an infant or incompetent person unless represented in the action by a guardian ad litem or other such representative who has appeared therein. If the party against whom judgment by default is sought has appeared in the action, he (or, if appearing by representative, his representative) shall be served with written notice of the application for judgment at least three days prior to the hearing on such application. If, in order to enable the judge to enter judgment or to carry it into effect, it is necessary to take an account or to determine the amount of damages or to establish the truth of any averment by evidence or to take an investigation of any other matter, the judge may conduct such hearings or order such references as he deems necessary and proper and shall accord a right of trial by jury to the parties when and as required by the Constitution or by any statute of North Carolina.

G.S. 1A-1, Rule 55(b)(2). Plaintiffs properly moved for default judgment on 20 October 1977. It was thus before a superior court judge to hear the application for judgment. Proper notice was given to defendants. See Sawyer v. Cox, 36 N.C.App. 300, 244 S.E.2d 173, cert. den., 295 N.C. 467, 246 S.E.2d 216 (1978).

The case was before the trial court on a motion by defendants to set aside the entry of default and on plaintiffs' motion for judgment of default. "For good cause shown the court may set aside an entry of default . . .." G.S. 1A-1, Rule 55(d). The motion to set aside the entry of default was addressed to the sound discretion of the trial judge. Privette v. Privette, 30 N.C.App. 41, 226 S.E.2d 188 (1976); Acceptance Corp. v. Samuels, 11 N.C.App. 504, 181 S.E.2d 794 (1971). Judge Friday heard the two motions on 9 November 1977 and deferred action. Before the matter was again heard, defendants filed their unverified answer and deposed the plaintiff driver.

On 6 February 1978, the matter came on before Judge Smith. He denied defendants' motion to set aside the entry of default and ordered a jury trial to determine the amount of damages. The order refusing to set aside the entry of default was interlocutory and unappealable. Appeals at this stage have been dismissed. Acoustical Co. v. Cisne and Associates, 25 N.C.App. 114, 212 S.E.2d 402 (1975); Trust Co. v. Construction Co., 24 N.C.App. 131, 210 S.E.2d 97 (1974); see also Waters v. Personnel, Inc., 294 N.C. 200, 240 S.E.2d 338 (1978). The matter should have gone on for trial on damages and then defendants could have presented their exceptions to the entry of default and the default judgment after the jury trial on damages. Under our former procedure, the action of Judge Smith would have been a judgment of default and inquiry. A final judgment of default was not entered. See G.S. 1-212 (repealed effective 1 January 1970). Under the new rules, there is no intermediate judgment by default and inquiry. A default judgment, however, can be entered only after everything required to its entry has been done. See Official Commentary to Rule 55. In this case, everything required for its entry had not been done. A jury trial to determine damages was still needed. A final judgment is one which disposes of the cause. " 'An interlocutory order is one made during the pendency of an action, which does not dispose of the case, but leaves it for further action by the trial court in order to settle and determine the entire controversy.' " Tridyn Industries v. American Mutual Insurance Co., 296 N.C. 486, 488, 251 S.E.2d 443, 445 (1979); Veazey v. Durham, 231 N.C. 357, 362, 57 S.E.2d 377, 381 (1950). In Tridyn, the Court held that summary judgment on the issue of liability, leaving for trial the issue of damages was merely an interlocutory order from which appeal would not lie. Judge Smith's judgment on the issue of liability which ordered that the case be placed on the calendar for trial on the issue of damages is also merely an interlocutory order. It is not a final judgment entered by default which is subject to a Rule 60(b) motion.

Defendants, however, filed a motion on 2 June 1978, pursuant to Rule 60(b), to set aside the default judgment. This is the proper procedure if there is a final default judgment. G.S. 1A-1, Rule 55(d). In this case, no final default judgment had yet been entered. It was necessary to resolve the damage issue before judgment could be entered. Judge Stevens, however, went on to hear the motion, found facts and entered an order removing the nonexistent default judgment on grounds of "mistake, inadvertence, surprise and excusable neglect." He considered nothing more than the matters previously considered by Judge Smith who ruled just the opposite in refusing to set aside the entry of default. Generally, one superior court judge cannot overrule another. In re Burton, 257 N.C. 534, 126 S.E.2d 581 (1962). This is applicable even in a case involving an interlocutory order such as the present case where there is no showing of changed circumstances since the entry of the interlocutory order. Defendants presented nothing new for Judge Stevens to hear that Judge Smith had not already heard. Thus, the order by Judge Stevens granting the Rule 60(b) motion is vacated.

Although an order refusing to set aside an entry of default is interlocutory, consideration will, nevertheless, be given to whether Judge Smith was in error in refusing to set aside the entry of default in this case. In our discretion, we have previously elected to hear other cases on appeal at this stage. See, e. g., Miller v. Miller, 24 N.C.App. 319, 210 S.E.2d 438 (1974); Howell v. Haliburton, 22 N.C.App. 40, 205 S.E.2d 617 (1974); Crotts v. Pawn Shop, 16 N.C.App. 392, 192 S.E.2d 55, cert. den., 282 N.C. 425, 192 S.E.2d 835 (1972); Hubbard v. Lumley, 17 N.C.App. 649, 195 S.E.2d 330 (1973); Whaley v. Rhodes, 10 N.C.App. 109, 177 S.E.2d 735 (1970).

There are distinctions between setting aside an entry of default and setting aside a default judgment. The former is governed by the first clause of Rule 55(d) (emphasis added) which requires that "(f)or good cause shown, the court may set aside an entry of default." The latter is governed "in accordance with Rule 60(b)." Id. In setting aside a default judgment, "Mistake, inadvertence, surprise, or excusable neglect," G.S. 1A-1, Rule 60(b)(1), for example, must be present but not in the setting aside of an entry of default. Both are, however, within the sound discretion of the trial judge. Thus, the standard in this case is whether good cause is shown and whether the trial judge abused his discretion in his decision. The defaulting party does not have to show excusable neglect. The standard is more lax than that required for setting aside a default judgment pursuant to Rule 60(b). Crotts v. Pawn Shop, 16 N.C.App. 392, 192 S.E.2d 55, cert. den., 282 N.C. 425, 192 S.E.2d 835 (1972).

In this case we do not reach the issue of whether the trial judge abused his discretion in refusing to set aside the entry of default. From the face of the order, it is apparent that Judge Smith was operating under a misapprehension of the law. He denied defendants' motion to set aside entry of default stating that

it appear(ed) to the Court . . . that the failure of the defendants to file answer or otherwise plead or appear in this action was not due to any of the reasons justifying relief set out in Rule 60(b) and good cause has not been shown for the setting aside of said entry.

Judge Smith was applying the more strict standards of Rule 60(b) and this was error. He was only to...