Pendley v. Ayers
Decision Date | 18 March 1980 |
Docket Number | No. 7924SC585,7924SC585 |
Citation | 45 N.C.App. 692,263 S.E.2d 833 |
Parties | Lillie Pitman PENDLEY v. Joy Nadine AYERS. |
Court | North Carolina Court of Appeals |
Bruce Briggs, Mars Hill, for plaintiff-appellee.
Morris, Golding, Blue & Phillips, by Steven Kropelnicki, Jr., and William C. Morris, Jr., Asheville, for defendant-appellant.
The question before us is: Did the trial court err in denying defendant's motion to set aside default where the record shows that at the hearing on said motion, the trial court found defendant to be negligent in failing to deliver the copies of summons and complaint to either her insurance representative or her attorney and that defendant has alleged facts, which if true, would constitute a meritorious defense? We hold that error occurred for the reasons that follow.
The official comment of G.S. 1A-1, Rule 55, of the Rules of Civil Procedure states:
The purported judgment entered herein was an entry of default. An entry of default is not a final order or a final judgment. Acoustical Co. v. Cisne and Associates, 25 N.C.App. 114, 212 S.E.2d 402 (1975); Trust Co. v. Construction Co., 24 N.C.App. 131, 210 S.E.2d 97 (1974). See Annot. 8 A.L.R.3d 1272 (1966); 4 Am.Jur.2d, Appeal and Error, § 127 (1962).
Pursuant to Rule 21(a) of the Rules of Appellate Procedure, we will treat this appeal as a petition for writ of certiorari and will allow it, in that we have determined that error occurred.
Judge Campbell stated for this Court in Whaley v. Rhodes, 10 N.C.App. 109, 111-12, 177 S.E.2d 735, 737 (1970):
"In Teal v. King Farms Co., 18 F.R.D. 447 (E.D.Pa.1955), Chief Judge Kirkpatrick set forth some of the distinctions between setting aside an entry of default and setting aside a default judgment.
'A default, but no judgment having been entered, the defendant's motion is governed by the first clause of Fed.Rules Civ.Proc. rule 55(c), 28 U.S.C. which is "For good cause shown the court may set aside an entry of default * * * ." The rules evidently make a distinction between what is required to make a good case for setting aside a default and what is required to set aside a judgment. The latter specifies "mistake, inadvertence, surprise, or excusable neglect." This has been construed to mean that the mistake, inadvertence, or surprise, as well as neglect, must be excusable in order to give the Court the power to set aside the judgment.
To set aside a default all that need be shown is good cause. There would be no reason for the distinction unless Rule 55(c) intended to commit the matter entirely to the discretion of the...
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Decker v. Homes, Inc./Construction Mgmt.
...of excusable neglect, and determined that defendants' conduct did not rise to the level of excusable neglect. In Pendley v. Ayers, 45 N.C.App. 692, 263 S.E.2d 833 (1980), the Clerk of Court entered default against defendant. Subsequently, a trial judge entered an order granting judgment aga......
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Bailey v. Gooding, 818SC1266
...which it purports to set aside pursuant to Rule 60(b) was an entry of default, not a final judgment by default. Pendley v. Ayers, 45 N.C.App. 692, 263 S.E.2d 833 (1980). Rule 60(b), by its express terms, applies only to final judgments. An entry of default may be set aside, not by motion pu......
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ESTATE OF TEEL BY NADDEO v. Darby
...304 S.E.2d 753 (1983), after judgment of default has been entered, the motion to vacate is governed by Rule 60(b), Pendley v. Ayers, 45 N.C.App. 692, 263 S.E.2d 833 (1980). A prior judgment may be set aside for "[m]istake, inadvertence, surprise, or excusable neglect" pursuant to Rule 60(b)......