Crotts v. Camel Pawn Shop, Inc., 7219SC662
| Decision Date | 25 October 1972 |
| Docket Number | No. 7219SC662,7219SC662 |
| Citation | 192 S.E.2d 55,16 N.C.App. 392 |
| Court | North Carolina Court of Appeals |
| Parties | Raymond C. CROTTS v. CAMEL PAWN SHOP, INC. |
John Randolph Ingram, Asheboro, for plaintiff-appellant.
Womble, Carlyle, Sandridge & Rice, by Allan R. Gitter, Winston-Salem, for defendant-appellee.
Plaintiff appeals from the trial judge's order vacating an entry of default.
An entry of default is only an interlocutory act looking toward the subsequent entry of a final judgment by default and is more in the nature of a formal matter; 6 J. Moore, Federal Practice, par. 55.10 (1), p. 1827 (2d Ed. 1966); and a court might feel justified in setting aside an entry of default on a showing that would not move it to set aside a default judgment. Moore, Supra, par. 55.10(2), p. 1831; see Whaley v. Rhodes, 10 N.C.App. 109, 177 S.E.2d 735.
When an entry of default has been made by the Clerk of Superior Court, a motion to vacate that entry is governed by the provisions of Rule 55(d) of the North Carolina Rules of Civil Procedure, which provides as follows:
'(d) Setting aside default.--For Good cause shown the court may set saide an entry of default, and, if a judgment by default has been entered, the judge may set it aside in accordance with Rule 60(b).' (Emphasis added.)
This court has previously stated that to set aside a default all that need be shown is good cause: 'There is no necessity for a finding of excusable neglect in granting a motion to set aside and vacate the entry of default.' Whaley v. Rhodes, Supra.
The trial judge in this case granted the motion vacating the entry of default after a hearing before counsel for plaintiff and defendant. The determination of whether a good cause exists rests in the sound discretion of the trial judge. Whaley v. Rhodes, Supra. It is well settled that action by the trial judge as to a matter within his judicial discretion will not be disturbed, unless a clear abuse of discretion is shown. Whaley v. Rhodes, Supra; Mull v. Mull, 13 N.C.App. 154, 185 S.E.2d 14.
Appellant has not favored us with the evidence heard by the trial judge upon defendant's motion to vacate the entry of default. Where appellant fails to bring the evidence up for review, we presume the trial judge acted within his discretion on evidence showing good cause to vacate the entry of default. In re Warrick, 1 N.C.App. 387, 161 S.E.2d 630; Cobb v. Cobb, 10 N.C.App. 739, 179 S.E.2d 870.
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Peebles v. Moore, 7910SC1163
...entry of default. Decisions under the modern Rules of Civil Procedure appear to have modified this procedure. In Crotts v. Pawn Shop, Inc., 16 N.C.App. 392, 192 S.E.2d 55, cert. denied, 282 N.C. 425, 192 S.E.2d 835 (1972), defendant filed its answer twelve days after expiration of the time ......
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Byrd v. Mortenson, 8110SC1263
...and will not be disturbed absent an abuse of discretion. Frye v. Wiles, 33 N.C.App. 581, 235 S.E.2d 889 (1977). Crotts v. Pawn Shop, 16 N.C.App. 392, 192 S.E.2d 55, cert. denied 282 N.C. 425, 192 S.E.2d 835 This Court follows the principle that "[i]nasmuch as the law generally disfavors def......
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Emick v. Sunset Beach & Twin Lakes
...heard to set aside the Entry of Default and it is therefore presumed that he acted within his discretion. Crotts v. Camel Pawn Shop, Inc., 16 N.C.App. 392, 394, 192 S.E.2d 55 (1972). In this case, the trial court's order setting aside the entry of default did not create any additional issue......
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Peebles v. Moore, 13
...Civil Procedure appear to have modified this procedure." The authorities upon which the Court of Appeals relied are Crotts v. Pawn Shop, Inc., 16 N.C.App. 392, 192 S.E.2d 55, cert. denied, 282 N.C. 425, 192 S.E.2d 835 (1972), and Bell v. Martin, 299 N.C. 715, 264 S.E.2d 101 (1980). The Cour......