Crotts v. Camel Pawn Shop, Inc.

192 S.E.2d 55 (1972)

16 N.C. App. 392

Raymond C. CROTTS v. CAMEL PAWN SHOP, INC.

No. 7219SC662.

Court of Appeals of North Carolina.

October 25, 1972.

Certiorari Denied December 5, 1972.

*56 John Randolph Ingram, Asheboro, for plaintiff-appellant.

Womble, Carlyle, Sandridge & Rice, by Allan R. Gitter, Winston-Salem, for defendant-appellee.

Certiorari Denied by Supreme Court December 5, 1972.

BROCK, Judge.

Plaintiff appeals from the trial judge's order vacating an entry of default.

An entry of default 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; see Whaley v. Rhodes, 10 N.C.App. 109, 177 S.E.2d 735.

When an entry of default has been made by the Clerk of 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 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(b)." (Emphasis added.)

This court has previously stated that to set aside a default all that need be shown is good cause: "There is no necessity for a finding of excusable neglect in granting a motion to set aside and vacate the entry of default." Whaley v. Rhodes, supra.

The trial judge in this case granted the motion vacating the entry of default after a hearing before counsel for plaintiff and defendant. The determination of whether a good cause exists rests in the sound discretion of the trial judge. Whaley v. Rhodes, supra. It is well settled that action by the trial judge as to a matter within his judicial discretion will not be disturbed, unless a clear abuse of discretion is shown. Whaley v. Rhodes, supra; Mull v. Mull, 13 N.C.App. 154, 185 S.E.2d 14.

Appellant has not favored us with the evidence heard by the trial judge upon defendant's motion to vacate the entry of default. Where appellant fails to bring the evidence up for review, we presume the trial judge acted within his discretion on evidence showing good cause to vacate the entry of default. In re Warrick, 1 N.C. App. 387, 161 S.E.2d 630; Cobb v. Cobb, 10 N.C.App. 739, 179 S.E.2d 870.

Before depositing its answer with the clerk defendant did not move under Rule 6(b) for enlargement of time to file answer, therefore, its tardily deposited answer did not constitute a bar to the entry of default. Under the circumstances, the answer was merely proffered for filing. Defendant has not yet made a motion under Rule 6(b) for enlargement of time to file answer, and, therefore, no answer has been filed. The portion of the judgment which states "so that the case may be decided on its merits" constitutes surplusage and is disregarded.

Insofar as the order appealed from vacates the entry of default the same is

Affirmed.

MORRIS and HEDRICK, JJ., concur.