L. Ishmael WHALEY
v.
H. Spicer RHODES.
No. 708SC672.
Court of Appeals of North Carolina.
December 16, 1970.*736 Henson P. Barnes and R. C. Braswell by R. C. Braswell, Goldsboro, for plaintiff appellant.
Taylor, Allen, Warren & 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 (b)." (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 *737 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 harm from the short delay involved in the default and grave injustice may be done to the defendant."
It is clear, under the federal cases, that a determination of whether or not good cause exists rests in the sound discretion of the trial judge, and that the facts and circumstances of the particular case govern. Elias v. Pitucci, 13 F.R.D. 13 (E.D.Pa. 1952). See also Mitchell v. Eaves, supra; Kulakowich v. A/S Borgestad, 36 F.R.D. 185 (E.D.Pa.1964). An action of the trial judge as to a matter within his judicial discretion will not be disturbed unless a clear abuse of discretion is shown. Welch v. Kearns, 261 N.C. 171, 134 S.E.2d 155 (1964).
In the present case the facts are sufficient to warrant a conclusion by the trial judge that the defendant has shown good cause for his failure to file an answer. Accordingly, the action of the trial judge in vacating the entry of default must be upheld.
It should be pointed out that there is no necessity for a finding of excusable neglect in granting a motion to set aside and vacate the entry of default, hence plaintiff's assignment of error directed at the trial judge's conclusion that excusable neglect existed is to no avail, and such finding was surplusage and though erroneous is not prejudicial.
For the reasons stated, the action of the trial court in setting aside and vacating the entry of default is,
Affirmed.
BRITT and HEDRICK, JJ., concur.