Whaley v. Rhodes

• Decision Date: 16 December 1970
• Docket Number: No. 708SC672,708SC672
• Citation: 10 N.C.App. 109,177 S.E.2d 735
• Court: North Carolina Court of Appeals
• Parties: L. Ishmael WHALEY v. H. Spicer RHODES.

Page 735

177 S.E.2d 735

10 N.C.App. 109

L. Ishmael WHALEY v. H. Spicer RHODES.

No. 708SC672.

Court of Appeals of North Carolina.

Dec. 16, 1970.

Henson P. Barnes and R. C. Braswell by R. C. Braswell, Goldsboro, for plaintiff appellant.

Taylor, Allen, Warran & Kerr by John H. Kerr, III, Goldsboro, for defendant appellee.

CAMPBELL, Judge.

Plaintiff assigns as error (1) the conclusion of law of the trial judge to the effect that the defendant's failure to file an answer was the result of excusable neglect; and (2) the action of the trial judge in granting the motion to set aside and vacate the entry of default against the defendant.

When an entry of default has been made by the Clerk of the 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 became effective 1 January 1970. Rule 55(d) provides 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(d).' (Emphasis added).

An entry of default is to be distinguished from a judgment by default. An entry 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.

The 'entry of default' has been characterized as a 'ministerial duty'. 2 McIntosh, N.C.Practice 2d, § 1668 (Supp.1970).

The federal courts, in their application of Rule 55(d), have favored trials on the merits. In Alopari v. O'Leary, 154 F.Supp. 78 (E.D.Pa.1957), the court stated:

'* * * A motion to set aside a default is addressed to the discretion of the court. Any doubt should be resolved in favor of setting aside defaults so that the cases may be decided on their merits. In view of the lack of any substantial prejudice to plaintiff, the claim of a meritorious defense, and the absence of any gross neglect on the part of defendant, the default will be set aside.'

See also Mitchell v. Eaves, 24 F.R.D. 434 (E.D.Tenn.1959).

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 Court, to be exercised, of course, within the usual discretionary limits. Thus, I think that inadvertence, even if not strictly 'excusable', may constitute good cause, particularly in a case like the present where the plaintiff can suffer no...