HECHT RLTY., INC. v. Hastings

262 S.E.2d 858 (1980)

HECHT REALTY, INC. v. Joseph M. HASTINGS.

No. 7926DC693.

Court of Appeals of North Carolina.

February 19, 1980.

*859 Cannon, Kline & Blair by Eric M. Newman, Charlotte, for plaintiff-appellee.

Childers, Fowler & Whitt by Robert C. Whitt, Mount Holly, for defendant-appellant.

PARKER, Judge.

A judgment by default, as distinguished from an entry of default, may be entered by the clerk only when, among other conditions, "the plaintiff's claim against a defendant is for a sum certain or for a sum which can by computation be made certain." G.S. 1A-1, Rule 55(b)(1). "In all other cases the party entitled to a judgment by default shall apply to the judge therefor." G.S. 1A-1, Rule 55(b)(2).

Plaintiff's claim as stated in its complaint in the present case was neither for "a sum certain" nor for "a sum which can by computation be made certain" within the meaning of Rule 55(b). The mere demand for judgment of a specified dollar amount does not suffice to make plaintiff's claim one for "a sum certain" as contemplated by Rule 55(b). Such a demand is normally included in the prayer for relief in every complaint in which monetary damages are sought, including complaints alleging claims for damages for bodily injuries caused by a defendant's negligence. The *860 complaint in the present case alleged a breach of contract by the defendant, but nothing in the allegations of the complaint makes it possible to compute the amount of damages to which plaintiff is entitled by reason of the breach. It may be that had the Exhibits A and B referred to in the complaint been attached thereto, such a computation would have been possible. However, since the exhibits were not attached and are not part of the record, that possibility is mere speculation. If it be granted that the complaint as filed gave sufficient notice of plaintiff's claim to withstand a motion to dismiss made under Rule 12(b)(6), see Sutton v. Duke, 277 N.C. 94, 176 S.E.2d 161 (1970), nevertheless it is certain that its allegations were not sufficient to state a claim "for a sum certain or a sum which can by computation be made certain" within Rule 55(b)(1). Therefore, the clerk had no power to enter the judgment by default, and the district court judge erred in denying defendant's motion to set aside the judgment.

For a different reason the court also erred in its denial of defendant's motion to set aside the entry of default. Although the clerk had power under Rule 55(a) to make the entry of default, "[f]or good cause shown the court may set aside an entry of default." Rule 55(d). In refusing to set aside the entry of default, the district court found that "the failure of the Defendant to file answer or otherwise plead or appear in this action was not due to any reasons justifying relief set out in Rule 60(b)." Such a showing was not necessary. In moving to set aside an entry of default, as distinguished from a default judgment, a showing of excusable neglect is not necessary. All that need be shown is good cause. Crotts v. Pawn Shop, 16 N.C.App. 392, 192 S.E.2d 55, cert. denied, 282 N.C. 425, 192 S.E.2d 835 (1972); Whaley v. Rhodes, 10 N.C.App. 109, 177 S.E.2d 735 (1970). It is apparent that the district court applied the wrong test in refusing to set aside the entry of default.

For the reasons stated, so much of the district court's order as denied defendant's motion to set aside the judgment by default is reversed and the judgment by default is vacated. So much of the district court's order as denied defendant's motion to set aside the entry of default is vacated and this case is remanded to the district court to consider whether there is good cause to set aside the entry of default. In this connection any doubt should be resolved in favor of setting aside the entry of default so that the case may be decided on its merits. Whaley v. Rhodes, supra.

Reversed in part;

Vacated and remanded in part.

ARNOLD and WEBB, JJ., concur.