dissenting:
My dissent in the present case is based upon a conviction that the facts as developed before the trial court show that the defendant had failed to show good cause for relief from the default judgment but was merely given the “benefit of the doubt.” I disagree with the position taken, not only in the majority opinion but also in federal cases, that if a defaulting party has an allegedly meritorious defense this fact should be considered in granting relief from a default judgment.
Defendant’s claim that he assumed Attorney Julian would represent him was not supported by any proven facts. Defendant certainly knew that he had not complied with the terms of employment as outlined by Attorney Julian and that this attorney was not retained by defendant prior to the entry of the default judgment. There was no misunderstanding as to the terms of employment of counsel. Defendant is apparently engaged in business and certainly should have been aware of the consequences of his failure to employ an attorney to represent him. Defendant’s testimony that he tried to contact Attorney Julian without success certainly is self-serving, particularly in the light of the attorney’s testimony concerning payment for his services.
*882I believe the facts as found by the circuit court, as outlined in the majority opinion, show that the defendant had not employed Julian to answer and defend against plaintiffs’ amended complaint and that the failure to answer and defend was due to the wilful neglect of defendant. Intercity Realty Co. v. Gibson, 154 W.Va. 369, 175 S.E.2d 452 (1970), cited in the majority opinion, is also authority for the point that good cause must be shown to set aside a default judgment. I do not believe that defendant has shown good cause for setting aside the default judgment, and that the evidence adduced before the trial court plainly and decidedly preponderates against the trial court’s ruling on the facts.
The apparent liberality with which both the federal and state courts grant relief from default judgments under Rule 60(b) of our rules, or its equivalent under federal rules and rules of other states, reward the dilatory and negligent, and punish the diligent. In my opinion this liberality in granting relief from default judgments renders it an act of futility to obtain a default judgment under Rule 55 R.C.P. If it is the policy of the law to favor the trial of all cases on their merits, then Rule 55 R.C.P. should be abolished.
The majority opinion refers to the fact that both cases and textbooks often consider whether a “meritorious defense” would be available to the party against whom a default judgment had been taken in determining the question of setting aside the default judgment. Realizing that I am going against the current, I feel that the consideration of a “meritorious defense” in such instances borders on prejudging a case before any evidence has been introduced in a proper manner.
For the foregoing reasons, I dissent.