Coulbourn Lumber Co. v. Grizzard
| Decision Date | 21 April 1981 |
| Docket Number | No. 806DC795,806DC795 |
| Citation | 277 S.E.2d 95,51 N.C.App. 561 |
| Parties | COULBOURN LUMBER COMPANY, v. Wilbur Alonzo GRIZZARD and Jean Grizzard, t/a Star Glass Company & Bertie GlassCompany. |
| Court | North Carolina Court of Appeals |
Pritchett, Cooke & Burch by W. L. Cooke, Windsor, for plaintiff-appellee.
Moore & Moore by Milton E. Moore, Williamston, for defendants-appellants.
Although defendants excepted to and assigned as error that entry of judgment by the trial judge, they have not argued that exception in their brief and it is therefore taken as abandoned. See Rule 28(b)(3), Rules of Appellate Procedure. The only question presented for our review is whether the trial judge committed prejudicial error in denying defendants' motion to set aside entry of default by the clerk.
Pursuant to the provisions of G.S. 1A-1, Rule 55(d), the trial court may set aside an entry of default for good cause shown. A motion to set aside an entry of default is addressed to the sound discretion of the trial judge and the order of the trial court ruling on such a motion will not be disturbed on appeal absent a showing of abuse of that discretion. Britt v. Georgia-Pacific Corp., 46 N.C.App. 107, 108, 264 S.E.2d 395, 397 (1980); Privette v. Privette, 30 N.C.App. 41, 44, 226 S.E.2d 188, 190 (1976); Acceptance Corp. v. Samuels, 11 N.C.App. 504, 510-11, 181 S.E.2d 794, 798 (1971). It appears from the record that a period of over seven and one-half months elapsed from the time defendants' untimely and unserved application for extension of time to file their answer was filed and the date defendants moved to set aside the entry of default, and that by such date, the case was calendared for trial. Under such circumstances, we believe the trial judge did not abuse his discretion in reaching the conclusion that defendants had not shown good cause for setting aside the entry of default.
Additionally, we note that in order for defendants to obtain relief here, they must show that the asserted error by the trial court was material and prejudicial. G.S. 1A-1, Rule 61, Rules of Civil Procedure; Trust Co. v. Carr, 10 N.C.App. 610, 618, 179 S.E.2d 838, 843, modified, 279 N.C. 539, 184 S.E.2d 268 (1971). We find no such prejudice and therefore decline to disturb the action of the court below. The entry of default by the clerk served no further purpose than moving this case for trial to the civil issue docket. The record discloses that at trial plaintiff put on evidence as to the existence of the contract, its breach by defendants, and damages ensuing to plaintiff as a result of the breach. Defendants' evidence did not...
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Granville Medical Center v. Tipton
...Inc. v. Petroleum Equipment & Service, Inc., 87 N.C.App. 606, 608, 361 S.E.2d 895, 896 (1987), and Coulbourn Lumber Co. v. Grizzard, 51 N.C.App. 561, 563, 277 S.E.2d 95, 96 (1981)). "Inasmuch as the law generally disfavors default judgments, any doubt should be resolved in favor of setting ......
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SECURITY CREDIT v. DJ'S OF SALISBURY
...Inc. v. Petroleum Equipment & Service, Inc., 87 N.C.App. 606, 608, 361 S.E.2d 895, 896 (1987) (quoting Lumber Co. v. Grizzard, 51 N.C.App. 561, 563, 277 S.E.2d 95, 96 (1981)). "The law generally disfavors default and `any doubt should be resolved in favor of setting aside an entry of defaul......
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Brown v. Lifford, No. COA99-99.
...ruling on such a motion will not be disturbed on appeal absent a showing of abuse of discretion. See Coulbourn Lumber Company v. Grizzard, 51 N.C.App. 561, 563, 277 S.E.2d 95, 96 (1981). A ruling by the trial court on a discretionary matter should not be reversed unless the decision was arb......
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Automotive Equipment Distributors, Inc. v. Petroleum Equipment & Service, Inc., 8726SC187
...trial court, whose decision will not be disturbed on appeal "absent a showing of abuse of that discretion." Lumber Co. v. Grizzard, 51 N.C.App. 561, 563, 277 S.E.2d 95, 96 (1981). We stated in Peebles v. Moore, 48 N.C.App. 497, 269 S.E.2d 694 (1980), modified and aff'd, 302 N.C. 351, 275 S.......