Hubbard v. Lumley, 7321SC154
| Decision Date | 28 March 1973 |
| Docket Number | No. 7321SC154,7321SC154 |
| Citation | 17 N.C.App. 649,195 S.E.2d 330 |
| Parties | Nancy Varner HUBBARD v. Barbara Gantt LUMLEY and Donald Howard Hubbard. |
| Court | North Carolina Court of Appeals |
Hudson, Petree, Stockton, Stockton & Robinson by Norwood Robinson, Winston-Salem, for plaintiff appellant.
Deal, Hutchins & Minor by John M. Minor and William K. Davis, Winston-Salem, for defendant appellee.
Plaintiff asserts that the trial judge abused his discretion in setting aside and vacating entry of default against defendant Hubbard.
When an entry of default has been made by the Clerk of Superior Court, a motion to set aside and vacate that entry is governed by the provisions of Rule 55(d) of the North Carolina Rules of Civil Procedure which provide as follows:
'(d) Setting aside default.--For Good cause shown the court may set aside 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.)
The determination of whether good cause exists under Rule 55(d) rests in the sound discretion of the trial judge and his ruling will not be disturbed unless a clear abuse of discretion is shown. Whaley v. Rhodes, 10 N.C.App. 109, 177 S.E.2d 735 (1970).
In support of his motion to set aside and vacate entry of default, defendant Hubbard asserted by way of affidavit that on 30 March 1972, he and his wife, the plaintiff, had a conference with attorney Norwood Robinson regarding the accident and the injuries plaintiff wife had received, and the potential lawsuit for recovery of her damages. Mr. Robinson then informed defendant Hubbard that the facts indicated that he, Hubbard, might be a defendant in any action brought by Mrs. Hubbard. Hubbard then wrote a letter to Mr. Robinson stating that he did not consider that the attorney-client relationship existed between them and released Mr. Robinson from any obligation Mr. Robinson might have owed him by virtue of defendant's having talked with him. About a week after the complaint and summons had been served on defendant Hubbard, he took them to Mr. R. D. Jackson of Aetna Life and Casualty Company, who advised him that his insurance policy excluded coverage as between persons related by marriage and that Aetna was not responsible for any coverage or defense against suit by plaintiff wife. Defendant Hubbard later read his policy carefully and found it had an SP--23 endorsement which, in his opinion, did make Aetna responsible for providing him with a defense. Realizing that time within which answer should be filed was about to expire, he called Jackson on the 5th or 6th of June 1972 and informed him of the SP--23 endorsement. Jackson then checked with the St. Louis office of Aetna and informed defendant Hubbard on 12 June 1972 that the St. Louis office had directed him to furnish defendant with a defense. Later that day Jackson directed defendant Hubbard to go to see attorney Grady Barnhill in regards to the matter at 9:30 a.m., 14 June 1972. At the meeting with Mr. Barnhill, defendant was informed that since Mr. Barnhill's firm was representing Mrs. Lumley and Allstate in the suit, arrangements had been made with Deal, Hutchins and Minor to represent him in the matter.
Defendant Hubbard further asserted by way of affidavit facts that tended to show that defendant Lumley was solely responsible for causing the accident and that he had a meritorious defense.
The affidavit of R. D. Jackson was also introduced at the hearing which tended to show that defendant Hubbard brought him the complaint and summons on 17 May, and since defendant had called him earlier that day informing him of the lawsuit, he assumed that defendant had been served on 17 May 1972 and noted that date in his file. Jackson stated that he was further informed that after defendant Hubbard had been taken to the office of attorney John Minor by Mr. Barnhill, Mr. Minor found that the summons and complaint had been served on Mr. Hubbard on 11 may instead of 17 May, and that immediately upon ascertaining the date of service, an answer was drafted and filed by Mr. Minor at about 11:30 a.m., 14 June 1972, at which time it was found that entry of default had been placed on record by Mr. Norwood Robinson, counsel for plaintiff wife.
The trial judge made findings of fact which in substance conform with those set forth in the affidavits and then made the following conclusions of law:
'1. That defendant Hubbard's failure to answer the Complaint prior to June 14, 1972, was the result of excusable neglect, within the provisions of Rule 60, North Carolina Rules of Civil Procedure; and
2. That, in its discretion, the Court concludes that good cause has been shown, in accord with Rule 55, North Carolina Rules of Civil Procedure, to set aside and vacate the entry of default against the defendant Hubbard as appears of record, and to permit said defendant's Answer to remain filed; and
3. That defendant Hubbard has a meritorious defense to the cause of action alleged in the Complaint; and
4. That there have been no intervening equities that would prejudice plaintiff by allowing defendant Hubbard's Answer to remain filed.'
We feel that the facts in this case are sufficient to warrant the conclusion of the trial judge that defendant had shown good cause for his failure to file his answer on time....
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Peebles v. Moore, 7910SC1163
...where defendant answered twelve days after the expiration of the time allowed to file responsive pleadings. In Hubbard v. Lumley, 17 N.C.App. 649, 195 S.E.2d 330 (1973), plaintiff served defendant with complaint and, after defendant failed to answer within 30 days, plaintiff moved for entry......
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Quis v. Griffin
...not abuse his discretion on the record before us. Defendants did not show any cause for setting the judgment aside. Hubbard v. Lumley, 17 N.C.App. 649, 195 S.E.2d 330 (1973), and Whaley v. Rhodes, 10 N.C.App. 109, 177 S.E.2d 735 Question No. II. Did the trial court commit error in admitting......
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Brown v. Lifford, No. COA99-99.
...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, [17 N.C.App. 649, 195 S.E.2d 330 (1973) ]. When the trial court exercises its discretion in considering a motion to set aside an entry of default, it is entirely pr......
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Bailey v. Gooding, 818SC1266
...surplusage and does not require reversal of the order denying defendants' motion to set aside entry of default. See 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). Defendants argue that the cited cases are inapplicable bec......