dissenting. Where, as here, a default judgment can serve no purpose or be sustained on any theory except as a penalty for failure to plead within the twenty days required by Ark. Stat. Ann. § 27-1135 (Repl. 1962), it is my position that the trial court may set aside the default under the “other just cause” provision in Ark. Stat. Ann. § 29-401 (Repl. 1962).
Obviously, Eobertson has not brought himself within the “excusable neglect” or “unavoidable casualty” provisions of the statute (although it is an oddity that he, a truck driver, did not wish Eitchie’s insurer to represent him in the matter). Nor does Eitchie have any standing to question a judgment against Eobertson. But with the trial court it is a different proposition, for the plaintiffs were still pursuing their lawsuit against Eitchie and Ashcraft.
The alleged liability of Ritchie and Ashcraft to plaintiffs wag based upon the premise that Robertson was negligent in the operation of Ritchie’s truck. Consequently in pursuing their cause of action' against Ritchie and Ashcraft, plaintiffs would force the trial court to ‘try the issue of liability (or negligence) of Robertson. Ritchie and Ashcraft had denied that Robertson was negligent.
No delay was occasioned to plaintiffs in the presentation of their case because they did not make Ash-craft a party until the day the default was entered against Robertson. Nor were the pleadings completely joined at the time the default was set aside.
The default entered went only to the liability of Robertson. The .damage issue remained to be presented. Any trial court, conscious of its work load, would certainly want to try the damage issue against Robertson at the same time the damage issue was presented against Ritchie and Ashcraft.
Thus, a default against Robertson did not relieve the trial court of the burden of trying the issue of negligence on the part of Robertson,- it would not expedite plaintiff’s rights against Robertson; and by permitting’ the default on liability to stand, the trial court ran the risk of having to enter inconsistent verdicts. See Porter-Dewitt Constr. Co. v. Danley, 221 Ark. 813, 256 S. W. 2d 540 (1953).
What purpose then does a default serve? Under the proceeding’s of this case, it did not relieve the trial court of the responsibility of determining the negligence or liability of Robertson, nor would it expedite the handling of plaintiff’s claims in the ordinary course of events. Does a default under these circumstances amount to anything more or less than a penalty? I think not.
Courts abhor penalties and will not enforce them, even when a person has contracted to pay them. Canadiam, Mining Co. v. Creekmore, 226 Ark. 980, 295 S. W. 2d 357 (1956) ; McIlvenny v. Horton, 227 Ark. 826, 302 S. W. 2d 70 (1957).
Furthermore, trial judges are not struck with blindness. Only a little inquiry of counsel on the facts would show that the practical issue here was whether Robertson was negligent in failing to successfully avoid a collision with a drunk driver on the wrong side of the road. While cases may he found in which a person in Robertson’s position has been found to be negligent, such is contrary to the norm of human conduct, and the trial court was certainly entitled to take this into consideration in setting aside the default — particularly so since it would have to hear the testimony on that issue anyway.
For the reason set forth above, I would affirm the judgment of the trial court.