(dissenting).
I must dissent from an opinion which reaches the most desirable result but for which there is no support in the record.
The question of course, is whether rule 236, Rules of Civil Procedure, allows the trial court to set aside a default judgment under the circumstances of this case. In my opinion the specific findings of the trial court — which are binding on us if supported by substantial evidence — make this impossible.
The trial court found defendant guilty of “out and out inexcusable negligence” in not only one, but two particulars. There is ample testimony to support such a finding, although the majority opinion holds otherwise. The majority so holds even though it also details Mr. Duke’s conduct in failing “for some unexplained reason” to follow the usual office routine, as a result of which “he forgot the appearance date”.
These facts make the decision to set aside the default directly at odds with rule *225236. The majority seems to hold a litigant need be diligent only after he has found himself in default by reason of his own negligence. That isn’t what the rule provides.
The trial court found defendant was negligent and that such negligence was not excusable. That should dispose of the case and the default should stand.
However, I do not believe the judgment entered by the trial court on damages is proper. Defendant should be given an opportunity to contest the proof of damages, even though foreclosed on the question of liability. I would remand for a hearing on damages only.
MOORE, C. J., and MASON, J., join in this dissent.