Miller v. Miller, 7410DC512
| Citation | 210 S.E.2d 438,24 N.C.App. 319 |
| Decision Date | 18 December 1974 |
| Docket Number | No. 7410DC512,7410DC512 |
| Parties | Ila MILLER v. Billy Ray MILLER and Frances Miller. |
| Court | Court of Appeal of North Carolina (US) |
L. Phillip Covington, Garner, for plaintiff-appellant.
Clyde A. Douglass, II, Raleigh, for defendants-appellees.
Rule 55(d) of the North Carolina Rules of Civil Procedure provides that '(f)or 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.)
It is well settled that an entry of default is to be distinguished from a judgment by default. Whaley v. Rhodes, 10 N.C.App. 109, 177 S.E.2d 735. An entry of default is made by the clerk of court and has been characterized as a 'ministerial duty.' See 2 McIntosh, N.C. Practice 2d, § 1668 (Supp.1970). Courts generally favor giving every litigant a fair opportunity to present his side of a disputed controversy.
We have repeatedly held that a determination of the existence of good cause under Rule 55(d) rests in the sound discretion of the trial judge. His ruling will not be disturbed unless a clear abuse of discretion is shown. Whaley v. Rhodes, Supra; Hubbard v. Lumley, 17 N.C.App. 649, 195 S.E.2d 330; Acceptance Corp. v. Samuels, 11 N.C.App. 504, 181 S.E.2d 794. We find no abuse of discretion in the ruling questioned by plaintiff.
Affirmed.
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Deutsche Bank Trust Co. Americas v. Tradewinds Airlines, Inc.
...as it stands. "It is well settled that an entry of default is to be distinguished from a judgment by default." Miller v. Miller, 24 N.C.App. 319, 320, 210 S.E.2d 438, 438 (1974). Though an entry of default has been characterized as a "ministerial duty" that allows a trial judge to apply a l......
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Peebles v. Moore, 7910SC1163
...generally favor giving every litigant a fair opportunity to present his side of a disputed controversy." Miller v. Miller, 24 N.C.App. 319, 321, 210 S.E.2d 438, 439 (1974). Inasmuch as the law generally disfavors default judgments, any doubt should be resolved in favor of setting aside an e......
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Bailey v. Gooding
...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, ce......
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E.B. Harris, Inc. v. Wiggins, No. COA09-169 (N.C. App. 4/20/2010)
...held that an entry of default is distinguishable from a default judgment and is merely a "ministerial duty." Miller v. Miller, 24 N.C. App. 319, 320-21, 210 S.E.2d 438, 439 (1974). An entry of default by a clerk requires "only that the Clerk ascertain that the party against whom a judgment ......