Howell v. Haliburton, 7422SC175
| Decision Date | 05 June 1974 |
| Docket Number | No. 7422SC175,7422SC175 |
| Court | North Carolina Court of Appeals |
| Parties | Juanita HOWELL, by her guardian ad litem, Thomas L. Howell, and Thomas L. Howell, Individually, v. John HALIBURTON, d/b/a Bebber's Grocery, et al. |
Chambers, Stein, Ferguson & Lanning by Fred A. Hicks, Charlotte, for plaintiffs-appellees.
Mraz, Aycock, Casstevens & Davis by Frank B. Aycock, III, Charlotte, for defendant-appellant.
Whether good cause exists to set aside an entry of default pursuant to Rule 55(d) is a matter addressed to the sound discretion of the trial court, Acceptance Corp. v. Samuels, 11 N.C.App. 504, 181 S.E.2d 794, and its ruling will not be disturbed unless a clear abuse of discretion is shown, Hubbard v. Lumley, 17 N.C.App. 649, 195 S.E.2d 330. On the facts of this case, no abuse of discretion has been shown.
The affidavits presented by defendant Bottling Co. in support of its motion indicated that plaintiffs' summons and complaint were served upon Donald L. McCollum, appellant's assistant secretary-treasurer, on 28 August 1972. That same day McCollum, in accordance with the claim reporting procedure of appellant's products liability insurer, Appalachian Insurance Company, reported plaintiffs' claim to Appalachian by a long distance phone call and mailed the summons and complaint to Appalachian. After 28 August 1972, neither McCollum nor any other officer or employee of defendant Bottling Co. had anything further to do with the matter until receipt of a letter, dated 3 May 1973, from plaintiffs' counsel advising of the 16 November 1972 entry of default. After 28 August 1972, Appalachian took no affirmative action to answer or otherwise defend in the case until, after being advised on 7 May 1973 of the entry of default, it contacted local counsel on 28 or 29 June 1973 to attend to the matter.
These facts, which were substantially reflected in the trial court's findings of fact, do not compel a conclusion that appellant demonstrated good cause to have the entry of default set aside. Defendant Bottling Co., after transmitting plaintiffs' complaint and summons to Appalachian on the day of service, paid no further attention to the lawsuit until more than eight months later. Such continued inattention distinguishes the instant case from the situations presented in Whaley v. Rhodes, 10 N.C.App. 109, 177 S.E.2d 735, and in Hubbard v. Lumley, supra. When the trial court exercises its discretion in considering a ...
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